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THE IMPACT OF THE PROPOSED TOTAL MAXIMUM DAILY LOAD REGULATIONS ON AGRICULTURE AND SILVICULTURE
MONDAY, JUNE 19, 2000
House of Representatives,
Subcommittee on Department Operations,
Oversight, Nutrition, and Forestry,
Committee on Agriculture,
Lonoke, AR.
The subcommittee met, pursuant to call, at 10:00 a.m., the Dale Bumpers Arkansas Rural Water Training Facility, Lonoke, AR, Hon. Bob Goodlatte (chairman of the subcommittee) presiding.
Present: Representatives Berry and Moran.
Also present: Representatives Emerson and Turner.
Mr. GOODLATTE. This hearing of the Subcommittee on Department Operations, Oversight, Nutrition and Forestry of the Committee on Agriculture of the U.S. House of Representatives will come to order.
My name is Bob Goodlatte, I am chairman of the subcommittee. I am from Roanoke, VA so I feel right at home in Lonoke, AR. And we are going to divert from the text very briefly here so that I can allow my colleague and friend, Marion Berry, who represents this district, to welcome the rest of us. And then we will go back to the opening statements.
Congressman Berry.
Mr. BERRY. Thank you, Mr. Chairman. We, first of all, want to thank you and welcome you to Lonoke, AR and we do appreciate the entire committee being here today and participating in this hearing.
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I want to welcome my good friend, Jim Turner from Texas. Jim's on my right. He is on the Armed Services and Government Reform Committee, but he is from east Texas and he shares a lot of the problems that we are also concerned about in Arkansas.
Also, my colleague from the bootheel of Missouri, Mrs. Emerson who is on the Agriculture Appropriations Subcommittee, and also shares a lot of the interests that we have here in Arkansas, and we have worked together very closely.
And last, but not least, Jerry Moran, from Kansas. And Jerry represents an agriculture district that we all appreciate very much. And the big difference in the Texas and the bootheel of Missouri and the Arkansas area that is represented here today is the fact that we get a whole lot more rainfall than Jerry Moran does in Kansas. And we are all thankful for that and we could share some of it with Jerry, but there is not much we can do about that.
But we appreciate all of you being here today. Thank you, Mr. Chairman.
OPENING STATEMENT OF HON. BOB GOODLATTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. GOODLATTE. The purpose of this hearing is to review the Environmental Protection Agency's proposed water quality regulation on agriculture and silvaculture. This is the third in the series of hearings this subcommittee has held on this issue. This hearing is essentially about four things.
First, EPA's rules are based on fundamentally-flawed scientific data.
Second, in the face of universal opposition, the EPA is now trying to cut deals on its rules at the expense of farmers, ranchers and other landowners.
Third, the EPA's lack of scientific credibility and its desperate efforts to cut deals strengthen the argument that the Agency should simply withdraw its rules and go back to the drawing board.
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Finally, if the Agency is unwilling to do the right thing by withdrawing its rules, Congress will be required to take action.
Let me begin by addressing the issue of flawed scientific data. In January of this year, Eva Clayton, who is the ranking Democrat on this subcommittee, and I requested the EPA to list for us by State and county the water bodies identified by EPA as having been impaired by forestry. The EPA responded with a list of over 1,000 water body segments.
In order to determine the veracity of the list, we requested the National Association of State Foresters and the Society of American Foresters to test it for accuracy. The NASF and the SAF have compiled their findings into a study entitled, ''A Review of Water Bodies Listed as Impaired by Silviculture Operations.'' The report found that, of the 1,040 water bodies listed by the EPA as impaired by forestry, only 84, 84 might—and I emphasize the word might—be impaired by forestry based on scientific monitoring data. Because of this, the report concludes that the EPA has relied on inadequate, unscientific data and ignored the effectiveness of State programs to ensure water quality.
Based on these embarrassing figures, I can appreciate why the EPA has decided to remove the forestry provisions from its proposed rules; however, the implications of this report extend far beyond forestry. It calls into question the credibility of all the scientific data the EPA is using to justify its proposed rules.
This serious concern about the integrity of the EPA science has been underscored in recent days by a new report released by the National Research Council, an arm of the National Academy of Sciences. This report, which was based upon consultation with hundreds of scientists, engineers and managers from within and outside the EPA, concludes that there is a continuing basis for concerns about the quality of research behind the Agency's regulatory decisions.
And if severely flawed science were not enough, in recent days, the press has uncovered the fact that the EPA is now engaged in secret, behind-closed-doors negotiations with environmentalists and others to try to broker a deal on the rules that will earn their endorsement. Of course, those most affected by these rules, the farmers, ranchers and forest land owners of America, have been shut out of these secret hearings.
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The record on these rules speaks for itself. Congress never gave the EPA the authority to do what it is trying to do. The EPA is using fundamentally flawed science to justify its actions. Now in an act of desperation, the Agency is trying to cut secret deals on the backs of the agriculture and the forestry communities. This is as political and cynical as it gets in the world of Washington-knows-best decision making.
And like the good people who have gathered here today, I have had enough. This debate is no longer about clean water, it is about political power. I think I can speak not only for myself but for my colleagues who have joined me here today in saying that we will not sit idly by and watch the EPA roll over the will of the people simply so a few high-ranking bureaucrats in Washington can claim a political victory. The EPA needs to stop and they need to stop now. These rules need to be withdrawn, the Agency needs to go back to the drawing board and start over on a policy that is legal, scientific, and most importantly, supported by the people.
Before I recognize the gentleman from Arkansas for his opening comments, I would also like to make note of another Member of Congress from Arkansas who could not join us today, but he has also played a very significant role in attempting to address this very serious concern that I know many of you share, and that is Congressman Jay Dickey. Congressman Dickey has introduced legislation in the Congress to halt this problem, and he has I think now more than 200 co-sponsors on his legislation. So while he could not be here today, he sends his regrets and I wanted to make sure that he was noted as well as somebody who is contributing to this effort to make sure that, while we address this problem of making sure that our waters are clean, that we not do so in a manner that is being pushed forward by the Environmental Protection Agency.
At this time, it is my pleasure to recognize the gentleman from Arkansas, Mr. Berry.
STATEMENT OF HON. MARION BERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
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Mr. BERRY. Thank you again, Mr. Chairman. I also want to note that our State Representative Bobby Glover is here from this area, and also two newly-elected senators in the State legislature, Alan Sims and Brenda Gold. And I cannot let this moment pass without recognizing the presence of John Miller who served in the Arkansas State Legislature for 36 years, I believe. He has been a great leader in Arkansas for a long time. [Applause.]
Before I begin my opening statement, Mr. Chairman and Mr. Hathaway from EPA, I want to apologize to you because I am about to really rip into the Environmental Protection Agency, and please know that I do not hold you personally responsible. But since you happen to be the representative from that agency today, you are going to catch a lot of flack, in my opinion justifiably so. But it is not intended to be personal.
Mr. GOODLATTE. We hear that you are a really good guy.
Mr. HATHAWAY. Thank you.
[Laughter.]
Mr. BERRY. I want to recognize all the farmers that are here today and the people that represent the forestry industry. We appreciate all of you being here today, and it is important that we get to hear from you and share your views on these proposed regulations.
As many of you know, I am a rice farmer from Juliet. Before I ever thought about politics, I was fighting the same battles with the Government on a daily basis that you all fight. I am still fighting them. Unfortunately, dealing with Government is a reality of being involved in agriculture and owning land.
I was raised to believe that farming is the most honorable profession in the world. One of the main reasons I ran for Congress was so I would have the opportunity to stand up for agriculture. This district which I am privileged to represent is home to some of the most fertile land in the country. We are very fortunate to have 50 inches of rainfall a year, this wonderful, rich soil and a superhighway into the international marketplace called the Mississippi River.
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I believe the farmers in the first district of Arkansas, some of whom are here today, are some of the best producers in the world. The first district produces more rice than any other district in the country and is among the leaders in wheat, cotton, soybean, poultry, fish, cattle and pork production. It is an astounding thing to think that we, in the lower Mississippi River Valley, are able to feed so many across this country and across the world. Because of the benefits the lower Mississippi River Valley has provided to east Arkansas farmers and others across this district, farmers have always taken it upon themselves to take care of the land and preserve it for the future.
Arkansas's producers deserve to be commended rather than attacked with more regulation. Producers of several commodities in this State have been national leaders in reducing water pollution. More and more producers are employing best management practices such as buffer strips and tail water recovery. Arkansas foresters have achieved 85 percent participation in their best management practices, and have greatly improved the land they use. Fish farmers often return the water they use to the environment in a better condition than it was in when they first used it. The EPA has even recognized Arkansas pork producers by giving them the Region 6 Administrator's award for excellence in improving the management for swine waste. Arkansas poultry producers joined forces in 1992 to improve the ways they deal with waste on their farms. The results have been dramatically improved water quality. We have achieved this without passing a law or issuing a regulation.
When producers are willing, able and successful at reducing pollution, the Government should not reward them by imposing more regulations. With the regulations EPA has recently proposed, having the voices of farmers heard in Washington is absolutely critical. I firmly believe the Congress and the whole Government need to be told about the burden of over-regulation placed on farmers by our own Government. This is why most of you are here today, and this is why this committee is here today.
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As we have seen in the past year, there is some in the administration who want to place more regulations on your back. The proposed rules on the total maximum daily loads and non-point-source pollution are another example of misdirected government policy. It is EPA at its worst. Makes us think more of authoritarian dictatorship than the Jeffersonian democracy. In every area of their jurisdiction, EPA under the control of Administrator Browner, has sought to impose new regulations which would stop the economic expansion of America that we have experienced in the last decade.
They have imposed these rules without going through the Congress, without cooperating with other agencies such as the Department of Agriculture, and without following sound science or transparent process. It has become a political statement, not a good scientifically-based policy. The result has been the rules that have kept Arkansas farmers awake at night for the last several months. We all agree that we must have pure, clean, safe water. We do not want our children, grandchildren or others exposed to unsafe water or food or unsafe environments.
What EPA does not understand is that the way to go about this is not through the heavy hand of Government regulation. This is exactly what is wrong with EPA's proposed rules on total maximum daily loads and non-point sources of pollution. Rather than providing technical assistance to producer-led pollution control efforts, EPA proposes to require permits from farmers for basic practices. This is explicitly against what Congress intended in the Clean Water Act. This act and the amendments adopted since it was passed make clear that States should have jurisdiction over non-point sources of pollution. The goal of the law was for States to encourage producers through grants and technical assistance to implement practices which improve the environment. In Arkansas, we have done this successfully.
EPA's efforts to impose more regulation from Washington do not come from scientific evidence or from a real desire to work with producers to curb pollution. EPA is operating from a misguided political agenda that has no practical basis. I have repeatedly urged, and before I came to Congress urged EPA to follow sound science and involve producers in their decisions. When we all sit down at the table, identify the problem and try to come up with a solution, we can solve almost anything. But it has reached the point where if this interferes with the political agenda of the Environmental Protection Agency's leadership, we just do not do it. EPA has shown that they would rely on Washington bureaucrats rather than the producers who actually own and operate and manage this land.
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Since EPA has been unwilling to do anything but issue more regulations, we have had to turn to legislation to get the job done. There are several bills in Congress which seek to stop the proposed TMDL and non-point source rules. I am a co-sponsor of the Combest-Stenholm bill which would prevent EPA from changing any practices currently regulated as non-point sources to point sources until Congress has passed legislation on this matter.
The bill would also impose a moratorium on the rules for 18 months until a study was conducted on alternative methods of improving water quality. There is also currently language in EPA's appropriations bill which would prohibit them from spending any of its funding on implementing these rules. Since EPA has been unwilling to listen to the concerns of agriculture and has chosen to go forward with unnecessary regulations, without scientific evidence, Congress must act to prevent a severe regulatory burden from being placed on America's farmers.
You are some of the best producers in the world. It is the job of the U.S. Government to ensure that you are allowed to continue to be successful. The bottom line is the EPA just wants to play bureaucratic, political games with the future of America's farmers, landowners and foresters. They have no sincere interest in solving a legitimate problem. It is our job in Congress to end over-regulation and other burdens which threaten the ability of farmers to produce food and fiber for this country and the world.
Thank you, Mr. Chairman.
Mr. GOODLATTE. Thank you, Mr. Berry.
Do other members have opening statements?
OPENING STATEMENT OF HON. JERRY MORAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS
Mr. MORAN. Mr. Chairman, thank you. I have no formal opening statement. I would just express my appreciation to you for conducting this hearing and to Mr. Berry for proposing this hearing. It is good to be in Arkansas.
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We do have a lot of interest in this topic. Water is awfully important, and as Mr. Berry indicated, is a bit more scarce where I come from than here. But clean water and adequate water supply is matter of agriculture to our economy. Forestry issues will be somewhat new to me. The district I represent comprises about three-fourths of the State of Kansas. The largest city in the district is 40,000 people. We are wheat, cattle and corn country and very rural. So I am interested in hearing the agriculture side of the TMDL issue, but as well the forestry issues. Where I come from, we admire trees one at a time. [Laughter.]
But it is a delight to be here with Mr. Berry. I appreciate the relationship I have with him in Congress. I look forward to the testimony here today. Thank you.
Mr. GOODLATTE. Thank you. Mr. Turner.
OPENING STATEMENT OF HON. JIM TURNER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. TURNER. Thank you, Mr. Chairman. First of all, I want to thank you for allowing me to join with the subcommittee today, to be here in Lonoke with my friend Marion Berry.
I serve on the Armed Services Committee and the Government Reform Committee. As Congressman Berry has reminded me from time to time, anybody who does not get to serve on the Agriculture Committee is second-class. So I am just honored to be here today.
I represent a district in east Texas much like this one, where we have similar interests. We have had meetings in our district to oppose the EPA rules and the people in agriculture and forestry feel very strongly about the issue before us today. I think there are perhaps four points we are going to try to make today and one of them is that the EPA, in pursuing agriculture and forestry, has misplaced its priorities. And when we look at all the problems of air pollution that this country needs to deal with, in my judgment, the last place they need to be looking is at agriculture and forestry.
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I think we also know and, in fact, it was reaffirmed in an article in the Washington Post just last week that the EPA is not basing these rules on sound science. The respected National Research Council, an arm of the National Academy of Sciences came out with a report just last week urging the EPA to improve its scientific research methodology. And I think we also want to point out today that the EPA's conclusions are based on unreliable data, and the respected National Association of State Foresters and the Society of American Foresters came out also last week with a report, a review of water bodies listed as impaired by silviculture operations, and pointed out very, very clearly that, of the 1,040 water bodies that the EPA has listed as impaired because of silviculture, only 84 may actually be impaired by silviculture. And even for these, silviculture may be only one of several activities contributing to the impairment.
And lastly, I think the point we would like to make today is that the EPA may have even engaged in questionable practices in the manner in which they have consulted outside groups in drafting this rule. Obviously we feel very strongly that the Administrative Procedures Act should be followed very carefully. And when we find that the environmental groups have been consulted by the EPA and that groups that we feel should be heard have not been, we think that the EPA has polluted the process and should, in fact, withdraw the rules.
So I am glad to be here today and to be a part of this committee. And again, to be in Congressman Berry's district who works so very hard on these issues in the Congress and does such an outstanding job representing each of you.
Thank you, Mr. Chairman.
Mr. GOODLATTE. Thank you, Congressman.
We are also very pleased to have with us a member of the Appropriations Committee and Agriculture Appropriations Subcommittee, Congresswoman Jo Ann Emerson from Missouri whose late husband actually chaired this subcommittee. And Jo Ann, I know he is here with us in spirit today. And we are delighted to have you here in person.
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OPENING STATEMENT OF HON. JO ANN EMERSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Mrs. EMERSON. Thank you, Mr. Chairman. I want to thank you for letting me tag along today. This is an issue that is very, very important to me and all those folks in my district.
As many of you might know, my district is just right north of Marion's in southeast—well, actually in that part of Missouri that is supposed to be Arkansas, according Arkansans, and you know, that part of Missouri that belongs in Missouri to those who live in the bootheel. But anyway, it is wonderful to be here.
Marion and I work on a lot of issues together because, while we may not be the No. 1 rice producing district in the country, we certainly are one of the top rice producing districts in the country. And not only that, but are probably are the most diverse agricultural district anywhere in the country because we grow everything in our district except for citrus and sugar.
But our entire economy is based on agriculture of one sort or the other, and also the production of lead. Ninety-five percent of the domestic lead that is produced in the United States actually comes from my district. And in addition to that, we have four-fifths of the Mark Twain National Forest which is about 1.2 million acres. And consequently, the whole way of life in my district is threatened by those who want to impose this rule upon agriculture, upon forest products industry, upon the mining industry. And you know, I have to agree with Marion, Mr. Hathaway, I am sorry that we are all going to beat up on you to some extent. But you also know that only in Washington, DC would they try to fix something that is not even broken. And that is very much was is troublesome to me on this issue.
And Marion said very rightly that the EPA wants to play political games with our future, and I think that is totally correct. Quite frankly, I think the EPA would like to us to just stop doing anything and go meditate in the national forest. That is probably what the result of all of this would be.
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But needless to say, I have 600,000 people in my district who desperately need jobs and a rural way of life that needs preservation, and certainly a rural economy that is not doing anything close to as well as that which the people who live in the cities and suburbs are now enjoying. And it is my goal to try to do everything I can to empower the folks in my district and to make for them a very successful lifestyle and not do more to tear it down.
But I do appreciate having the opportunity to be here and look forward to hearing from all of you.
Mr. GOODLATTE. Thank you.
We are now pleased to welcome our first panelists. Mr. Thomas Christensen, who is the Director of Animal Husbandry and Clean Water Programs, National Resources Conservation Service, U.S. Department of Agriculture; Mr. William B. Hathaway, Director of Water Quality Protection Division, Region 6, Environmental Protection Agency, Dallas, TX; Mr. Randall Mathis, Arkansas Department of Environmental Quality, Little Rock, AR; and Dr. Corbet Lamkin, chairman of the Arkansas Soil and Water Conservation Commission, also in Little Rock.
Gentlemen, we are glad to have all of you with us. Your written statements will be made a part of the record, and we are pleased to recognize each of you for your oral remarks. We would like you to limit those remarks to 5 minutes.
And let me say to everyone here, we have three very good panels, each comprised of four witnesses, and we are going to have to gavel the hearing down at 1:00 because of our schedule to get back to Washington in time for votes there early this evening. So we all are going to try to keep things on an expeditious pace and we hope all of you can help us with that as well.
And with that in mind, Mr. Christensen, we welcome you.
STATEMENT OF THOMAS CHRISTENSEN, DIRECTOR, ANIMAL HUSBANDRY AND CLEAN WATER PROGRAMS, NATURAL RESOURCES CONSERVATION SERVICE, U.S. DEPARTMENT OF AGRICULTURE
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Mr. CHRISTENSEN. Thank you, Mr. Chairman, members of the committee. It is my pleasure to be here today to discuss the issue of EPA's proposed rules on total maximum daily loads.
USDA certainly shares this committee's commitment to cleaning the waters of the United States and building on the successes in reducing water pollution over the last several decades. The remaining pollution concerns, which have been highlighted in the President's Clean Water Action Plan are non-point sources of pollution such as soil erosion, urban run-off, pollutants from animal feed operations and other sources that do not come from the end of a pipe. Addressing these non-point sources is the great challenge that remains for all of us.
Accomplishing the next steps in cleaning our waters will take considerate efforts from farmers, ranchers, forest land owners as well as those in urban and suburban areas. Notwithstanding the work that remains, however, farmers, ranchers and foresters have been working for years to reduce the effects of their operations on water quality. We in the USDA are proud of their contributions to the nation's efforts to clean our waters. Much has been achieved, much of that through the conservation tools that you have provided in the Congress with the 1985, 1990 and 1996 farm bills.
For example, the Conservation Reserve Program has been extremely effective in reducing erosion on highly-erodible lands. The Wetland Reserve Program and the Environmental Quality Incentives Program have benefitted thousands of farmers and ranchers and helped them to improve the environment by reducing soil erosion and run-off into streams and rivers. In addition, the Conservation Reserve Enhancement Program is playing an important role in protecting the waters of the Chesapeake Bay, salmon habitat in Oregon and Washington and drinking water supplies in New York.
At a recent field hearing held by this committee in North Carolina, members of the committee expressed a need for a reasonable and responsible TMDL program structured around sound science, cost sharing and voluntary measures and programs. USDA certainly agrees and has worked closely with the EPA to achieve these principles. In February, the Secretary of Agriculture testified before the U.S. Senate on this issue. He said, I quote
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I believe the TMDL rule should recognize the best management practices of America's farmers, ranchers and foresters. Second the rules should be more clearly constructed and should minimize adverse effects on agriculture and silviculture operations. And third, it should allow for reasonable time frames for planning and implementation.
As you may know, in January this year, USDA Under Secretary James Lyons and EPA Assistant Administrator Charles Fox, established an inter-agency working group of senior staff to review key issues. The group worked from January through the spring and came to agreement in a statement that was released on May 1. I want to briefly highlight the aspects of the joint agreement pertinent to agriculture and forestry.
Both agencies agree that giving local citizens and State governments the most say in how pollution budgets are established for impaired waterways would have the greatest measure of success. The joint agreement grants States more flexibility in setting priorities, more time to develop lists of impaired waters and simplifies listing requirements, dropping a requirement that threatened waters be listed. In addition, States would have 15 years to develop TMDLs for impaired waters.
Most importantly, from the standpoint of agriculture, EPA and USDA agree that voluntary and incentive-based approaches such as the water quality improvements that farmers have made through Federal conservation programs, and certainly on their own initiative, will be given due credit in the development of TMDLs. USDA believes the agreement reached with EPA in May is a significant improvement over the August 1999 EPA proposal, and that it is workable for agriculture and forestry. Clearly, though, given the public response, there is more discussion that needs to take place with the public on forest water quality issues. So USDA supports EPA's decision not to include the forestry provisions in the TMDL rule to be finalized this summer, but rather to further engage stakeholders and to repropose the forestry provisions separately this fall. USDA will continue to work with EPA as it decides best how to proceed to address the important forestry issues.
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Adequate funding of the programs that will help landowners address TMDLs is a key to their success. The President's fiscal year 2001 budget requests includes $1.3 billion above currently-authorized levels to bolster our agriculture conservation programs. As you are probably familiar, this includes increases for the Environmental Quality Incentives Program, Conservation Reserve Program, Wetlands Reserve Program, and also it would establish a new Conservation Security Program to provide annual payments to farmers and ranchers who voluntarily implement various conservation practices, many of which will benefit water quality.
USDA believes outreach, education and technical assistance to communities would play the key and decisive role in helping them to improve their water quality.
Mr. Chairman, I thank you for the opportunity to appear before you today on behalf of USDA and welcome the opportunity to respond to questions.
[The prepared statement of Mr. Christensen appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you very much. Mr. Hathaway, we are pleased to have you with us, and here is your chance.
STATEMENT OF WILLIAM B. HATHAWAY, DIRECTOR, WATER QUALITY PROTECTION DIVISION, REGION 6, ENVIRONMENTAL PROTECTION AGENCY, DALLAS, TX
Mr. HATHAWAY. Well, I will keep my statements very brief. You have a written testimony.
On behalf of the Regional Administrator who was unable to be here today, I would like to extend his apologies. He was called out of the region, but he was at the hearing on Monday last week. And I will try to paraphrase some of his comments, some of the comments of the region.
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I do not really represent all the views of the headquarters folks, because I do not really have all those views. I have lived in the region all my life, spent 30 years with EPA and all of that has been in the region, so I have a regional perspective.
We do not seriously have a silvacultural problems here in the region, so I feel like the BMPs have worked and worked very effectively, and I think that the removal of the silvacultural requirements from the regulation was a good idea. So I do want to get that in right off the bat.
Many of the factors that led to these regulations though—and we do need regulatory changes in the TMDL process because the 1987 amendments to the Clean Water Act came into being and added storm water, added the 319 program, added several things to the program, and the regulations have never been adjusted as a result of that. So for the most part, they are out of date in a lot of ways and do need to be brought up to date.
In addition to that, a number of lawsuits have come about which have changed the landscape of the entire water quality issues throughout the country, and especially in this region where four of our five States have received lawsuits as a result of the TMDL process. We were a strong supporter in this region of the Federal advisory committee that was put together in 1996 and many of the people from this region were on that committee, not the least of which was the head of the Louisiana Department of Environmental Quality, Dale Gibbons, John Craig from Oklahoma, a number of other folks. I participated ad hoc to that.
I think it was a good process. It was not a consensus process at the end, but a lot of good recommendations came from that. And I think as a result of that, there was a clear indication that a broad section of the country, agriculture, environmental groups, as well as State and local officials, agreed that there was some need for changes to the regulations and that they were somewhat outdated.
There was an inconsistency that developed as a result of the listing process, and the listing process is too onerous to do every 2 years. So I think some changes in that area are probably warranted and need to be made, because that adds to the burden that we have placed on our State agencies to try to do things in a very compact and vacuum situation that is really leading to some lists that do not represent the quality that we would like to see. And I do believe that these regulations will do that. There are a lot of provisions within the regulations that we are not discussing and have not been discussed at many of these meetings that I have gone to across the country.
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But best management practices work. They work when they are used adequately and used properly, and when the people that apply them feel strongly that those are things that they need to do. And I think we proved that right here in the State of Arkansas. And I think you see it in the forest areas and I think you see it in the agricultural area.
But as I said, we do need to expand the time frames and lengthen the process to improve the science. Right now the courts have been giving us five and 7-year schedules. These regulations call for a 15-year schedule and I think that is certainly warranted because much more time is necessary to do the job right. It also lengthens the listing process which is, I think, an onerous process that needs to be changed.
There is, as was stated earlier, by the gentleman from agriculture, there is a joint statement between EPA and the agriculture department which I think captures some of the areas and some of the needs that we have to deal with the regulations.
And I would leave the time that I have remaining on this to questions to you all from the committee. Thank you.
[The prepared statement of Mr. Hathaway appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Hathaway.
Mr. Mathis, welcome.
STATEMENT OF RANDALL MATHIS, ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY, LITTLE ROCK, AR
Mr. MATHIS. Thank you, Mr. Chairman, members of the committee. I appreciate this opportunity. It is an honor to appear before you. I welcome you to the natural state and the heartland of America. And I know my counterparts in your States.
By the way, Mr. Moran, I believe as Mr. Hathaway was mentioning, the lawsuits, the lawsuits are against EPA, but two of the States are Kansas and Arkansas. Kansas has some 252 stations that they monitor. We have 251, and I think that is the top numbers in the country. But we were sued by the Sierra Club and others in regard to the failure for us to have adequate TMDLs. One of the things that happens is that all the States have had a lot of TMDLs, they just did not include non-point source in them. Just dealt with the point source.
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Mr. Berry, in all due respect, I have got to give John Miller 4 more years in the House of Representatives, like 40 years. And look at him, he shows every bit of it. [Laughter.]
I had a call from Mr. Chuck Fox in early April from Washington and asked me for some advice as to what might be done with this regulation. My advice at that time was to pull it back and make it comport, make the regulation comport with the language that he and Carol Browner were saying this would do. In meetings that occurred in April with the U.S. Department of Agriculture and EPA, and they came out in May 1 with a statement, most of those changes have been made that needed to be made.
Now I do have some major concerns with the report. California U.S. District Judge, Judge Alsop, apparently has a ruling that EPA agrees with, and that ruling was that the authority to include non-point source pollution in TMDL processes is a proper thing to do, it is appropriate to do it. And I think we all understand that. I agree with that, and EPA agrees with that. If you are going to determine what a stream can assimilate and still meet water quality standards, you have to look at all sources.
However, EPA seems to disagree with part of that, because the District Judge ruled that, although TMDL is a part of the Clean Water Act, the TMDL guidelines should only be advisory to the State. And EPA tends to interpret its guidelines as a fact of law. They are generally adopted without benefit of public hearing. And you must comply with the way the program is proposed and the guidelines are to be carried out.
There are times that I would say that Mr. Hathaway, you know, he has skated along the lines of common sense and thin ice all through the years. It made it very difficult for him in Washington at times. And if it were not for him, we would have had a very difficult time in the five States in this region 6. The man knows what common sense is and uses it on a regular basis. And that is a rarity with EPA. The regional administrator also—and I do not know how they manage to hire a regional administrator or appoint one, but usually, it is common sense. So we are fortunate in this region.
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But the District Judge also ruled that non-point sources of pollution should not be subject to direct mandatory regulations under the Clean Water Act. EPA disagrees with that part of it.
The joint statement continues the discussion of requiring permits. Now in my discussions with Chuck Fox and others with EPA, that would be the last resort for those who would not put in best management practices. However, we do not have the guidelines as to how this would be carried out. And until we have those, we do not really know, the small print is in the guidelines. So I think that permits would only be required by the EPA if the EPA changes the definition of point source.
What this leaves open is that, for example, if you have a section of land, you have got a mile run-off, that is a non-point source. EPA, however, leaves open the potential to call that a point source. And when we hear that there will not be a permit required unless there are dire circumstances for non-point sources, they could change non-point source to point sources, and then would come under the regulations. And I think that is something that we need to look at.
EPA has lost a significant number, a majority of its legal challenges arising over its interpretation, or its misinterpretation of the environmental laws enacted by the U.S. Congress. It seems to me that EPA would have to declare a sheet run-off from such as I just described, as a point source, to bring it under this program. And I think they must not be allowed to circumvent the laws and the intent of Congress by taking such actions or leaving that possibility to take those actions.
Current EPA administrators give an interpretation to Federal law that was never intended by the Congress. I believe many of those interpretations wrongfully flavor the EPA regulations to the extent that a backlash is created that is harmful to the efforts to protect the environment. The EPA has a dismal record in defense of such regulations. When it has been challenged in U.S. District Courts, EPA has lost in 70 percent to 90 percent of the cases that judges have ruled that it has overstepped its authority.
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I have every confidence in Mr. Chuck Fox's integrity and believe that he will keep his commitment, but I do not know that he will be allowed to do so. There were in excess of 30,000 comments, 20,000 of those, two-thirds, were on the forestry. It appears that EPA will bring those back at some point in the future. The date has not been set, but we have separated out agriculture from that to continue to say that that must be done at the present time.
In Arkansas, about 80 percent of the silviculture activities are following the best management practice. Ninety-five percent of the farmers in one of our districts in northwest Arkansas voluntarily put in best management practices. We saw a considerable improvement in the nutrient loading in that stream, and I dare say that you could not have gotten 95 percent of the farmers. I have been a farmer a lot of my life and we are free spirits out there. And if you come to me and tell me I have got to do something, you know, I may not, or I may argue.
But these people volunteered, 95 percent of them, and put it in. And with the opportunity to do that, they will continue in the future.
I think one of the things that we must not forget is that the ever-increasing of national balance of trade deficit would be much greater if it were not for the agriculture and silviculture trades between our country and the international market.
I just want to say—and I realize the red light is on and I am not sure I can unscrew the bulb. But I did testify in Hot Springs recently on a Senate bill by Senator Bob Smith, chairman of the Senate Environment and Public Works Committee and Senator Crapo, and that bill provided funding, some monies for the landowners but also for the 106 and the 319 water program that is going to be desperately needed if we are to continue to carry out a program that is a voluntary program that is really going to do the job that must be done.
The States have matured in their programs and we carry out over 70 percent of the programs that are delegatable now in the country. We provide 75 to 80 percent of the enforcement actions and over 94 percent that goes into the EPA database is put there by the States.
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I think that what we are seeing here is, in light of the EPA's recently—and the Senate finally caved in on it, but the salary and administrative costs. What concerns me in any money bill is how much of this is going to go to the continued growth of the staff in Washington, DC of EPA. They built their Chinese wall and put their salaries and their people over there behind it and they continue to grow. And I would recommend to you that some 8,000 or 9,000 people who are there need to be reduced to about 500 people and put the rest of them out in the country where they can work with the States and understand what is going on in the real world.
And one other thing I would just say in closing—I have said more than I had time for—but I would just like to say that Mark Twain once said that common sense is not too common. And although my good friend Bill Hathaway uses it, it is very rare in EPA in Washington. And I trust that common sense will prevail, that we will have legislation. And I know that there is a delay—and this is in my testimony—in this bill that I talked about. And Mr. Berry, I understand that the bill that you are talking about has some of the same provisions in it, and I am not thoroughly familiar with that, but I want to get familiar with it.
I would suggest to you that if what has been proposed as is now proposed in the report that was submitted by EPA and the U.S. Department of Agriculture, were carried out exactly like it is said to be carried out, then there would not be a major problem with it. The problem is that that very seldom occurs.
Thank you very much.
[The prepared statement of Mr. Mathis appears at the conclusion of the hearing.]
Mr. Goodlatte. Thank you, Mr. Mathis.
Dr. Lamkin.
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STATEMENT OF CORBET LAMKIN, CHAIRMAN, ARKANSAS SOIL AND WATER CONSERVATION COMMISSION, LITTLE ROCK, AR
Mr. LAMKIN. Thank you, Mr. Chairman. I appreciate the opportunity to appear before the committee, and I would like to offer the following testimony.
The Arkansas Soil and Water Conservation Commission is an agency of the State of Arkansas that establishes policy, makes funding and regulatory decisions relative to soil conservation, water rights, dam safety, water resource planning and development and non-point source pollution. The Governor of Arkansas has designated the Commission the lead agency for agricultural of non-point pollution and has delegated to it the responsibility for development of the Arkansas non-point source pollution management program. The Arkansas Soil and Water Conservation Commission and I appreciate the opportunity to comment on this important issue.
It is my understanding that the total maximum daily load, TMDL, of a water body is the maximum load of a certain pollutant that the water body can accept without violating water quality standards. The TMDL of the water body is also the sum of the waste load allocation from point sources, plus the load allocation from non-point sources, plus a margin of safety. Natural or background loads are included in non-point sources.
The proposed TMDL process appears to be:
Investigate to determine what pollutants cause impairment of water-use functions.
Second, determine the current level of that pollutant.
Third, determine the acceptable level of the pollutant.
Fourth, find the difference.
And fifth, develop a plan to reduce the load to an acceptable amount.
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Although logical as a management tool, the process may not be defendable for regulatory purposes due to the constantly changing nature of the non-point source pollution.
The following are concerns that the Arkansas Soil and Water Conservation Commission has regarding the TMDL process. Many of the pollutant standards are narrative in nature. Numeric standards have not been developed. Second, the data available for determining non-point load allocations do not appear to be of sufficient accuracy or extent to be used in regulatory exercise. In addition, the monitoring to accumulate additional data is extremely expensive because of the need for storm event data. The determination of non-point loading is difficult because of the loading carried in storm events, as well as seasonal loading. Loads vary due to the amount of flow and the contribution of atmospheric deposition originating outside of the watershed.
The proposed use of models to establish TMDLs is questionable due to the lack of accurate data. If modeling is not based on sound data and procedures, the results will only be the generation of new disputes and legal challenges.
Because of these potential vulnerabilities due to the lack of scientific rigor, the Arkansas Soil and Water Conservation Commission recommends that the Water Pollution Program Enhancement Act of 2000 be enacted. This act would provide a National Academy of Science review of the proposed rule and require the Administrator to consider the Academy's findings prior to adoption of a final TMDL rule.
Additional positive effects include increased funding and enhanced flexibility for providing matching funds under section 319 of the Federal Water Pollution Control Act, increase funding under section 106 of the FWPCA and collection of reliable monitoring data under section 106.
Finally, the funds needed for the development of TMDLs could be more effectively spent for watershed management strategies and implementing conservation practices in accordance with resource management plans.
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Thank you for your time.
[The prepared statement of Mr. Lamkin appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Lamkin.
We will now begin with questions for this panel. I understand that Mr. Mathis and Mr. Lamkin, you may have to slip out early to attend a funeral. Is that correct?
Mr. LAMKIN. Yes.
Mr. GOODLATTE. Feel free to go whenever you need to go and we will proceed with the questions.
Mr. LAMKIN. Appreciate that.
Mr. Goodlatte. First to Mr. Hathaway and Mr. Christensen, I want to commend you both for the excellent reputation that you have amongst the people that you serve. You need to know that the comments that have been made and the questions that will be asked are not directed at you personally but rather to a few people in Washington, DC. I think that as we proceed today, we will be able to draw the clear distinction between hard-working professionals like you, who actually work with the people, and those in Washington who are simply trying work the people over.
Mr. Hathaway, as you know, one of the chief criticisms of your proposed rules is that the EPA lacks the scientific data required to identify impaired water bodies needing TMDLs. On May 22, the EPA sent a letter to Congress addressing this and other criticisms. Included with this letter was a document entitled, ''Setting the Record Straight on Proposals to Restore America's Polluted Waters.'' The purpose of this document was to correct misinformation about the TMDL rules. Are you familiar with the document?
Mr. HATHAWAY. Just vaguely familiar, sir.
Mr. GOODLATTE. Let me read an extract from this document intended to ''set the record straight on EPA scientific data.'' The document reads ''The EPA welcomes informed debates about science and public policy. But many of the claims made by the opponents of the proposal are simply untrue.'' The EPA further identifies as ''misinformation'' the claim that information needed to identify polluted waters needing TMDLs is not available. The EPA also states that the States and EPA have good data on water quality and are able to identify polluted waters.
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Are you sufficiently familiar to know that those statements are part of that record?
Mr. HATHAWAY. Yes, sir.
Mr. GOODLATTE. I want to take a moment to review with you the findings of a new report by the Society of American Foresters and the National Association of State Foresters on the scientific data the EPA used to justify the forestry provisions in its proposed rules. I referred to this report in my opening statement.
In January of this year, Congresswoman Eva Clayton, who is the ranking Democrat on this subcommittee, and I asked the EPA to provide us its list of water bodies that are impaired by forestry operations. The EPA responded in writing with a list of 1,040 of water body segments that the EPA asserts are silviculturally impaired. To our knowledge, this is the primary data supporting the forestry provisions in the EPA's proposed rules.
I apologize to some of the audience who may not be able to see this chart.
To test the integrity of this list, Congresswoman Clayton and I asked the Society of American Foresters and the National Association of State Foresters to field test the EPA's list. Mr. Hathaway, I want to review with you their findings outlined on that chart.
Of the 1,040 water bodies identified by the EPA, nearly half, 496 are not even impaired based upon the most current information provided by the States. In 77 of these remaining water bodies, forestry was not a primary source of water pollution, meaning that the impact of forestry on water quality was minimal. For 383 of these water bodies, water quality impairment was based on so-called evaluated data. That means that these waters were listed as impaired based on visual evidence only. They have never actually been tested to determine whether they are impaired or by what sources of pollution.
That leaves us with 84 of the original 1,040 water bodies identified by the EPA that may be impaired by forestry based on hard data. I emphasize the word ''may'' because, for these water bodies, forestry is only one of several sources of pollution in these waters.
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Mr. Hathaway, these findings by the Society of American Foresters and the National Association of State Foresters have led them to conclude the EPA has relied on inadequate, unscientific data to support its proposed rules. Based on this information, which was prepared by the two top forestry professional associations in America, can you agree in good faith with the EPA's claim that the States and the EPA have good data on water quality and are able to identify polluted waters?
Mr. HATHAWAY. I obviously have not seen this report that you are referring to and the data that is involved here. I do not doubt its credibility and I do not know that much about how it was produced or what information they used to make these determinations. But obviously it does indicate that there is a problem.
There is a problem with data in the TMDL process, and I will be the first to admit that, that in the 305(b) reports that we have, there are some data that is not really data, it is observation as you indicated. And this is something we have been striving very hard, since the 1996 305(b) report in this region, to try to improve on. And we have sent a lot of money to our State agencies to try to improve the quality to try to improve the quality of the 303(d) list which results from that.
But as you can see, for instance, in the State of Arkansas, there are only 13 segments that are shown in the 305(b) report and none of those were on the 1998 list. We did not include any of the silviculture on the 1998 list.
As a result of the lawsuit, we have been required to go back now and re-review all 13 of those segments for possible future listing. But at the beginning of the process in the 1998 list, we did not put any of those on the 1998 list.
Mr. GOODLATTE. On that basis then, can you agree with the EPA's claim that those who criticize the EPA for not having the information needed to identify polluted waters needing TMDLs are being untruthful and misleading as was claimed by the EPA?
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Mr. HATHAWAY. I really could not comment on that. I do not know the context of all of those comments.
I will say that data is the key to the TMDL process, and better data is, by far, the thing that we need the most and need the funding for. And I think Randall would agree with me that we have been striving for the last 4 or 5 years to improve that quality.
Mr. GOODLATTE. Well, without, again, directing any of this to you personally, I think it is clear, based on this information, with regard to forestry, at least, it is the EPA rather than its critics that is spreading some misinformation about its proposed rules when it says it can identify 1,040 impaired water bodies and does not have the scientific data to back it up.
I also find it astounding that the EPA would launch a major effort to regulate forestry practices beyond the authority provided by the law based on such fundamentally-flawed scientific data. I find it even more outrageous that the EPA's Washington officials would then come out and characterize those who challenge this flawed data as spreading misinformation. The EPA's lack of information on forestry is so profound that it calls into question the integrity of all the scientific data on which the EPA's proposed rules are premised. By dogmatically attacking those who have challenged what we now know to be fundamentally flawed data, the EPA is showing its true colors. It is demonstrating that these rules are based more on political power than science, and I think that is a powerful reason why the Agency needs to withdraw its rules and go back to the drawing board.
My time is expired. I will recognize the gentleman from Arkansas, Mr. Berry.
Mr. BERRY. Thank you, Mr. Chairman.
I think it is evidenced of the cynical way the EPA administration in Washington approaches these problems, by them putting you in this position, Mr. Hathaway. I think it is quite obvious that you are sincere and have great integrity and respect for other people that work with you all the time, and they sent you here basically as cannon fodder, which is a favorite tactic of the Administrator who, I might note, is required many times to put her hand on the Bible before she testifies before a Congressional committee because they have such little faith that she will tell the truth. [Laughter.]
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Mr. GOODLATTE. Let the record reflect that none of these witnesses were asked to.
Mr. BERRY. I am not questioning your integrity at all.
I would note that it has been my experience since working very closely with people at EPA in 1993 and since then, that the career employees in that Agency have a tendency to be much more responsible and have much more integrity than the political appointees that I am referring to at this time. But we do appreciate very much you being here, and we hope that you will take the message back as best you can, and not get yourself in trouble, because we do not want to create any problems for you.
But one of the most egregious things that the political people at EPA do, I think, is this procedure that they use where they get a private environmental group to come in and file suit against someone like Mr. Mathis's agency, and try to force an issue, and where the stakeholders do not even have a seat at the table. They forced an agreement between Arkansas Department of Environmental Quality and EPA and the court and the environmental group, but the landowners left out of this deal. And it is what I think is one of the most irresponsible tactics that they use, to try to take advantage of the situation politically. And they have created an awful lot of havoc in the countryside, not only on water quality issues, but on every issue that you can imagine. So I would also hope that you would relay that, and I wanted that to be part of the record today, that I think that is a terrible tactic, and hope that EPA in the future will begin to be responsible, not do these little private, back-door deals and try to force the issues when they have absolutely no scientific evidence to back them up at all.
With that, Mr. Chairman, I yield the balance of my time.
Mr. GOODLATTE. I thank the gentleman.
The gentleman from Kansas.
Mr. MORAN. Mr. Chairman, thank you.
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Mr. Hathaway, are you familiar with the report issued, I guess last week by the National Research Council on the quality of the EPA's scientific research?
Mr. HATHAWAY. No, I am not, sir. I mean, I have heard of it, but I have not read it.
Mr. MORAN. Well, fortuitous for us prior to our hearing today, we had a report by the National Research Council which was critical of the EPA's scientific standards and the manner in which they conduct scientific research and the basis for which they make decisions within EPA lacked a scientific basis. A very timely report, in particular, as we come here to Arkansas to talk about TMDLs.
The committee from the National Research Council—their report concluded that there is a continuing basis for many scientific concerns raised on previous reports. It went on further to say, ''we base this conclusion on extensive experience of the members of our committee in assessing EPA's scientific practices and performances, including the matters discussed and the documents cited in this report, and other independent investigations of EPA's science in which members of our committee have participated.''
The committee also criticized EPA for lack of leadership in coordinating science stating that, in the committee's unanimous judgment, the lack of a top science official is a formula for weak scientific performance in the Agency and poor scientific credibility outside the Agency.
Do you have any response to criticism, more than what you have already said, about lack of a scientific basis for the TMDL study or for other experiences you have had within the Agency?
Mr. HATHAWAY. No, sir, I have no further comment other than to say that I believe that science is the backbone of this entire process, and I strongly support strong science for doing this type of work.
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Mr. MORAN. With appropriate methodology and appropriate officials, is there a way to make decisions within EPA based upon a strong science background?
Mr. HATHAWAY. Well, there is certainly a process by which we can do that. Now we have not had the adequate science through the 305(b) process, on these TMDL—303(d) list TMDLs for quite some time. And we have been working very hard to try to apply the funds to do that over the past 4 or 5 years. But unfortunately, that takes a lot of time, and it takes a tremendous amount of expenditure for a small gain. So it is a costly process.
Mr. MORAN. And is that your understanding of why there is a lack of scientific basis for decisions made by EPA, is lack of resources?
Mr. HATHAWAY. Well, that is a part of it. A part of it is lack of resources. A part of it is lack of that being our No. 1 priority in some of our funding processes. We have not had a scientific funding process that has kept up with the times.
Mr. MORAN. In addition to funding, what else causes, in your opinion, EPA to be less than scientific in reaching its conclusions?
Mr. HATHAWAY. Well, at the national level, I cannot speak to that. Of course, the regulations are all written at the national level, and of course, our chief science at the Office of Research and Development is at the national level. So I really cannot speak to that.
But at the regional level, it is a matter of time and money because we have the dedication, we have the knowledge, we have know-how, and we certainly know that it is important to have the good science.
In working with our State agencies, we struggle with this every year. And when we sit down to talk about the annual 106 grant process, and we struggle with how much science, how much can we afford to have this year, what is the quality of that science that we can afford and so forth. So these are annual decisions that we struggle over year after year after year in our negotiations with the State agencies.
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Mr. MORAN. But clearly, the scientific basis for the TMDL conclusions was lacking?
Mr. HATHAWAY. In the 303(d) list, yes, sir.
Mr. MORAN. Perhaps this is a better question for others on the panel. Do you all ever sense that EPA reaches a conclusion, rather than reaching a process to reach the conclusion? They have a desired outcome and then they develop rules and regulations to reach that conclusion previously made? I am trying to let Mr. Hathaway off the hook.
Mr. HATHAWAY. I have no opinion on that.
[Laughter.]
Mr. MORAN. Mr. Mathis or Mr. Christensen, Mr. Lamkin?
Mr. MATHIS. Yes. EPA Washington selects the acronyms first, and then they get the words for them, that fits the acronym.
I would like to respond, if I could, to this 305(b) report. About 5 or 6 years ago, in a town meeting in Virginia, Carol Browner, the Administrator of EPA, was holding a town meeting as a part of the Environment Council of States meeting. And one of my fellow directors of the State agency had just made a statement that we ought to really be careful and make sure that everything we say is true and correct. And he had just reported on 10 stations, and Kansas had 252 and we had 251, did not show any of the streams that did not meet the fishable, swimmable goal. Had another with 27. Now they did theirs quarterly on 10. Another State, having done 27 quarterly when they could get to it, they sent that report in. We had two States at that time that did not do one at all.
I can tell you that EPA Washington, based on that, does not have the foggiest notion of what the water quality is in this country. And at that time, Ms. Browner was saying, Mr. Mathis, I think we all know what the 305(b) report is. We need to move along. I said, Ms. Browner, I do not believe anybody in here knows except I know, and I will proceed. And so I went forward with it. And Mr. Burgess Eppie said, well, Mr. Mathis, we are going to start reporting every 5 years instead of every 2 years. And he said, that will help. And I said, yeah, it will mean 3 years more, longer, before you misrepresent the facts again to Congress about what the water quality is in this country. And I can tell you, they do not know.
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And on this report here, what we had presented back on an earlier report was that the possibility or probability of the siltation or sedimentation in the streams was from road construction, highway construction, streets, development projects, and as a last possibility in the earlier reports, the forestry would be looked at. But it was never said in any report that that was the cause, that we sent in that that was the cause of it. The assumption was always that they are in this order, the first two and this would be the possible cause.
And as to the National Academy of Science, I think that whatever delay is necessary, to get a report from them. EPA has had 28 years to come up with the science on this and have not done it, and I think we need to give the National Academy of Science a longer period of time than maybe 18 months, like a couple of years, to really do some sound science on this, and give us some real guidelines, EPA and us. I think it will bring a heck of a lot more trust into this whole process, if NAS does this rather than EPA.
Mr. MORAN. There is legislation, as you know, pending that would require that scientific involvement.
I appreciate, Mr. Mathis, Mr. Hathaway, you responding to my questions. It does seem to me—Mr. Lamkin?
Mr. LAMKIN. I would like to respond in this fashion.
We have been very fortunate in the State of Arkansas that we have been allowed to work with some people that had some common sense. If we do not have officials in the right places with common sense, these regulations can be misused and abused. And we have been very fortunate. I applaud Mr. Mathis, he has a whole lot of common sense. And I have gotten to know Mr. Hathaway over the last couple of years, and I would second Mr. Mathis's observation that he has a whole lot of common sense. Unfortunately, common sense is not always available, and when rules are applied without common sense, the reality can be very harsh.
Mr. MORAN. Well, I appreciate your comments about common sense. I also just fail to understand why we lack a scientific basis for what we do. That just seems to me to be something that we would all strive for, and the only conclusion I can reach is that someone within the Agency wants to reach a conclusion that it is not based upon science, and therefore does not lay the groundwork. And again, perhaps as Mr. Lamkin just said, we all would have a lot more credibility in the conclusions if we knew that science was involved in the process of developing what the standards are going to be.
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So I appreciate your testimony and look forward to hearing our other panelists.
Mr. GOODLATTE. Thank you, Mr. Moran.
Mr. Turner.
Mr. TURNER. Thank you, Mr. Chairman.
Mr. Hathaway, I want to talk to you a little bit about the process that EPA uses to go through, to make rules. How many years have you been observing the rulemaking process of the EPA?
Mr. HATHAWAY. I have been with the Agency for 29 years.
Mr. TURNER. So I guess you have seen a lot of rules proposed and enacted during those years?
Mr. HATHAWAY. Yes, sir.
Mr. TURNER. And as I understand it, under the law, there is always a period of public comment before a rule is implemented, is that correct?
Mr. HATHAWAY. Yes, sir.
Mr. TURNER. And how long a period is that, usually, to allow the public to have input?
Mr. HATHAWAY. It varies, but the Administrative Procedures Act has a minimum. Typically we start out with a minimum and then extend the period for quite some time. As was the case in this case, I think there was an extension of the comment period on these particular rules.
Mr. TURNER. Now after the public comment period is over, which is the period that we are in right now with regard to this proposed rule, what kind of regulations or statutes govern the discussions that might take place between the EPA and the interested parties?
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Mr. HATHAWAY. Well, of course, not being lawyer, I cannot really delve into that. But I know the Administrative Procedures Act as well as the ethics rules have certain requirements on the Agency as far as ex parte discussions with individuals whenever we are in rulemaking. And we are very careful in the region not to enter into those kinds of discussions.
I really do not have all the legal jargon as to how that all plays out.
Mr. TURNER. Are you familiar with the article that appeared in a publication called Inside EPA on June 13 that reported some secret meetings that had been taking place between EPA officials in Washington and some of the national environmental organizations?
Mr. HATHAWAY. Yes, sir, I am familiar with that report. I do not know anything about the context, but I am familiar with the report.
Mr. TURNER. Would it be appropriate, in your judgment, for the EPA in Washington to be meeting with certain groups about modification and changes in this regulation, but not consulting with other interested stakeholders who may have a contrary view?
Mr. HATHAWAY. Again, I am not a lawyer and do not know that much about the rules and how they actually apply. But it is my understanding that, once the comment period closes, we as an agency are supposed to review the comments and the information that we have received and make our decision based on that information.
Mr. TURNER. And are there occasions when a rule is changed to such a degree that it might be appropriate then to republish that rule and to allow further public comment on the revised rule?
Mr. HATHAWAY. That has happened, yes, sir. We have had that in the past, we have had reproposed rules. After a certain period of time has gone by and we were unable to reach a conclusion on just what the comments told us, we have reproposed rules.
Mr. TURNER. I might ask Mr. Mathis or Mr. Lamkin, have either of you heard anything about or been consulted in any way by officials out of Washington with the EPA regarding changes in this rule as was reported in this article in Inside EPA?
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Mr. MATHIS. Mr. Turner, the only conversation I have had is when Mr. Charles Fox called and asked me to give him advice on the regulation, where I had said to him, you need to pull the regulation back, you need to make the regulation comport with what you and Ms. Browner are saying it will do.
My main concern is the interpretation that under Ms. Browner has really been difficult for everybody to live with is interpreting the regulations in a manner that you carry out guidelines rather than what is in the regulation. Her interpretation goes into the guidelines, and some of the staff. And I think that is a real difficult thing to make any judgment call on any regulation up front, until you see the small print, which is the guidelines that EPA Washington expects to be imposed as a fact of law.
Mr. TURNER. Do you think, Mr. Mathis, it would be appropriate, if the EPA is making substantial revisions in this rule to republish the rule and give the public the opportunity to see it again?
Mr. MATHIS. Absolutely.
Mr. TURNER. How about you, Mr. Lamkin?
Mr. LAMKIN. I second Mr. Mathis's observation, absolutely, and I have had no contact.
Mr. TURNER. Well, I certainly think it would be the fair thing to do, if the reports are correct that substantial revisions are being made in the rule through consultation with environmental groups, and yet those of us in my part of Texas and Mr. Berry's part of Arkansas and several other members of the committee have people that are interested in the rules, they ought to have the opportunity to be heard in any proposed revision as well.
Mr. Mathis?
Mr. MATHIS. Yes. EPA has partners and they have stakeholders. And generally, their stakeholders starts with the Environmental Defense Fund or the Sierra Club, and they call them stakeholders and they call the States partners. We would sure like to be a stakeholder rather than a partner, so that we would have more voice in the matter.
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Mr. TURNER. Absolutely.
Mr. Hathaway, recently the EPA announced that they were going to withdraw the regulations with respect to forestry, and take a look at those again and republish later, as I understand it. Is that correct?
Mr. HATHAWAY. Yes, sir, that is the announcement.
Mr. TURNER. Do you have any understanding or personal opinion regarding what prompted that decision?
Mr. HATHAWAY. It is only speculation, because no one has told me point-blank what the decision was based on. But it is my speculation that it was based on the controversy that arose as a result of the original proposal in August 1999 from the forestry industry.
I happen to have been fortunate enough to have been at all of those hearings but one that had been conducted here in Arkansas, Louisiana and Texas and have been a constant purveyor of that information back to Washington with various reports and so forth as a result of those hearings. And that, along with the other testimony and so forth, I assume had an impact on the decision to withdraw the forestry industry from these current regulations.
Mr. TURNER. I of course am interested in protecting the interests of both forestry and agriculture, and of course was pleased that they acknowledged that they needed to pull back on those particular regulations relating to forestry. But it also seemed a little bit unusual to me that they would have pulled back with respect to forestry, because I fail to see any significant distinction between the impact of these rules on forestry and agriculture. And maybe I am a little suspicious by nature, but it almost appears when we see in the reports and the publication Inside EPA that the EPA has been meeting with the national environmental organizations on those rules and we notice some of their activities on Capitol Hill where they are facing intense pressure from members like you see before you and others, that perhaps the EPA was engaged in a tactic of trying to buy off some of this opposition so it could at least push through part of its rules.
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And can you make any distinction for me between the rules as they would affect agriculture versus forestry, that would make any sense with regard to the actions to simply pull back on forestry but leave agriculture subject to the rules?
Mr. HATHAWAY. I cannot really shed any light on other than to say that, if you look at the predominance of the comments, the predominance of the comments that was received by the Agency came from the forest industry or related forest industry products comments, and perhaps that had some bearing on it.
In our region, the presence of forest segments on the TMDL list is very, very minor. And it is not of consequence to remove those. And you know, I think it was the right thing to do.
Mr. TURNER. Mr. Mathis, do you have any thoughts on that issue that I raised?
Mr. MATHIS. Well, of course, Bill is correct and if you looked at the chart over there, we really do not have that problem, and I do not think they have that problem throughout region 6. I do believe that over two-thirds of the comments came from the forestry industry, and I believe that if EPA felt that that regulation on forestry could fly to get through, that they would have left it with the agriculture part.
The appearance to me is that you would expect that maybe forestry would not come out and support agriculture in a strong opposition of the regulation on agriculture if they are dropped out. However, if it is going to come back later and include them in it, and it may be exactly what was proposed to begin with, that may defeat what I believe to be the purpose.
Mr. TURNER. But it seems to me they may have decided they could not whip them both at the same time so they are going to try to whip them separately.
Mr. MATHIS. I would rather fight one than two, would you not?
Mr. TURNER. That is right.
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Thank you, Mr. Chairman.
Mr. GOODLATTE. Thank you, Mr. Turner.
Mrs. Emerson.
Mrs. EMERSON. Before I ask my questions, I just have a couple comments to make. To Mr. Mathis and Mr. Lamkin, I do applaud you for your common-sense values. How about coming to Missouri and replacing our folks there? I will send them down here and then people would really get up in arms.
Mr. MATHIS. I did live in the bootheel at Kennett, MO, so I know where you are.
Mrs. EMERSON. At least my local folks are great. It is the State guys where common sense does not prevail.
But you may be interested to note—and I appreciate the comments that—and I think probably that all of you feel this way, about the fact that we ought to really reduce the administrative costs on the bureaucracy in Washington and put our resources out here in here in the field, you all are close to the land, you know the land, you work very closely with our producers, and it makes a huge difference. And being on the Appropriations Committee, we fight that battle every time, every single year.
I think you probably may be interested—perhaps, Mr. Hathaway, you will not like this too much, or even Mr. Christensen. But everyone in the audience will like the fact that in the VA, HUD and related agencies, appropriations bill that has come out of our committee, we have, in fact, put a limitation on that bill that says ''none of the funds available in this or any prior act may be used to make a final determination on or implement any new rule relative to the * * * '' and then goes on to the formal language. Basically, no money will be put forward to promulgate the new TMDL rules. So we are hopeful we are going to be able to keep it in through the process. Although I suspect when we get back to DC tonight, we are going to start having big fights on this. But we are doing our best, at least until we know that we have got sound science and some common sense put into this. But at least, we are making the attempt.
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If we can go back to this forestry and agriculture thing, let me ask you, Mr. Christensen, since nobody has asked you anything, and I feel kind of bad, would not the Secretary of Agriculture, who is supposed to be the chief lobbyist for agriculture in America for our farmers and ranchers, would not the Secretary want to give our farmers and ranchers the same opportunity to engage in additional discussions as the forestry industry has been given?
Mr. CHRISTENSEN. Well, certainly the Secretary is a strong advocate for agriculture in this country. I think the distinction, as I understand it, as to what EPA did with the announcement in regards to silviculture had more to do with the permitting, the potential for permitting on the silviculture side. So agriculture already has an exemption, storm water exemption from permitting, and also irrigation return flows are exempt. But of course, animal feeding operations that are classified as confined animal feeding operations by EPA, are subject to permitting requirements.
Mrs. EMERSON. And the voluntary ones will probably become subject to them as well. But you do not have to respond to that because I do not want to get you in trouble with your boss.
I just do not think we do not have sound science, we have only got one advocate in this as Congressman Turner said, I think it is very right, I think it should well be that the Agency does not want to pick off one of the huge opponents of this and make a lot easier. But it is very worrisome to those of us, particularly those of us who represent producers, agriculture, mining, as I said, forestry. When that is all you have got in your district, I think the EPA is just sticking its nose, where ought not to be, and I just am very, very concerned about it.
Let me just ask you a scientific question, if I could, Mr. Hathaway. If in fact this is a serious problem and we are having to go through all the machinations of putting together a rule and the incredible cost that it is going to end up imposing on our farmers and ranchers and those down at the bottom of the chain, if you will, why are we going to wait 15 years before it ends up being implemented?
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Mr. HATHAWAY. Well, it is an incremental implementation. Some get implemented the first year, some implemented the 15th year. The science takes a long time. To review each water basin and develop the science for that water basin takes a long, long time, and you do that—and we do, we have a 5-year rotating basin program that we follow, so every year you get one basin, the next year another basin, and so forth until you do them all in a 5-year period.
It takes two cycles, basically, to get all that science gathered in that 5-year rotation situation, and then you have got to write the TMDLs and the implementation plan and do the participation that is required. It will take us anywhere from 12 to 15 years to go through the process and do it right and do it scientifically.
Mrs. EMERSON. Even though it is started already on probably not very sound science?
Mr. HATHAWAY. Yes, ma'am, it started with the 1972 act, but it just has not really picked up much steam until recently.
Mrs. EMERSON. You all described stakeholders as being the environmental community or Justice, EDF and all of those groups. What would you characterize farmers and ranchers as being?
Mr. HATHAWAY. Well, I do not recognize that terms that Randall was talking about that much. I see all of us as partners in this process, working together trying to develop what we all think, I think, is what we want for our children and our grandchildren, and that is clean water.
Mrs. EMERSON. Can you tell me, to the best of your knowledge, how many stakeholder meetings you had with folks in each of the States that you oversee?
Mr. HATHAWAY. How many stakeholder meetings?
Mrs. EMERSON. How many meetings—did you not have meetings or public hearings within the region with people here in this region?
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Mr. HATHAWAY. We had public meetings across Arkansas, Texas and Louisiana on this TMDL regulation over the past several months. We did not conduct those ourselves but we attended and participated in those meetings.
Mrs. EMERSON. Who conducted them, do you know?
Mr. HATHAWAY. Various and sundry folks. I do not know——
Mrs. EMERSON. Were any of you all invited to those meetings?
[Audience response.]
Mrs. EMERSON. That is not a very large number of people in this room.
Mr. HATHAWAY. Those were not conducted by the Agency. I mean, we participated in those as a member of that and testified in those meetings in Monroe and El Dorado and Fayetteville.
Mrs. EMERSON. I would not include those meetings that Congressman Berry had. I guess what I am asking you is, does EPA come out and talk to groups of people who are going to be impacted by a proposed regulation? And the answer has been, at least as far as I can tell when I have talked to Ms. Browner in hearings, the answer is yes. But I have yet to meet one person who has been invited by EPA to any of these meetings where they were supposed to express their concerns, so I am confused.
Mr. HATHAWAY. We have not had stakeholder meetings in this region or partner meetings, or whatever terminology you want to use, on this regulation. But we have had on other things, such as the Clean Water Action Plan and that sort of thing. But we have not held in this region a meeting on these regulations.
Ms. EMERSON. That is very interesting. Do you know if any of the other regions have had any meetings?
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Mr. HATHAWAY. I am not familiar with those, I do not know.
Mrs. EMERSON. When the EPA asks you all to do something on a region, do you get—because I just do not know what the process is, do each of the regional directors get a memorandum, say, from the Administrator, excuse me, saying, we want you to do X, Y and Z within a certain period of time?
Mr. HATHAWAY. Well, very often that happens. The Administrator or the Assistant Administrator for Water will send out a memorandum to the regional administrator saying, I want you to conduct this or that or the other in your region over the next several months. That has happened.
Mrs. EMERSON. Well, I could go on, but in the interest of time and letting the other panelists go, I probably should stop, Mr. Chairman.
Mr. LAMKIN. Mr. Chairman could I make an observation for Ms. Emerson?
I live in south Arkansas, and I have never seen the public response that was brought out by the hearings on the TMDLs. Basically, if you can get a crowd of a couple of hundred people in south Arkansas, you have done something real big because our population is very sparse and very rural. In El Dorado, the crowd exceeded 1,250 people and Mr. Hathaway was there. I have never seen such a crowd show up for a public hearing. In Texarkana, I understand the crowd was somewhere between 3,000 and 4,000 people. This issue touched people, this issue touched the heart of south Arkansas's economy, and that is timber, and the people did respond once they were invited to a meeting.
Mrs. EMERSON. Well, considering the 30,000 responses EPA got on public comments and 20,000 of the 30,000 were from the forest products industry, that obviously is very reflective of that. But I dare say that our farmers and ranchers would have felt as strongly, and therefore I do not feel their comments obviously were taken into consideration as much. It is not your fault, personally, just the Washington mentality, that they make up their mind about something and then they work backwards instead of thinking about how much it is going to cost somebody. Thanks.
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Mr. GOODLATTE. Thank you, Mrs. Emerson.
A couple of points I want to clean up. Mr. Hathaway, did you indicate you were or were not familiar with the legislation introduced by Mr. Combest and Mr. Stenholm, the chairman and ranking member of the full Agriculture Committee on this issue?
Mr. HATHAWAY. I have not read that legislation.
Mr. GOODLATTE. It is H.R. 4502.
Mr. HATHAWAY. I have not read that legislation, sir. I read the legislation introduced by Senator Crapo and am familiar with that, but I have not read the other legislation.
Mr. GOODLATTE. Well, that bill requires the National Academy of Sciences, in which the NRC is located, to review the EPA's science before the TMDL rule becomes final. Are you aware of the EPA's official position on H.R. 4502?
Mr. HATHAWAY. No, sir.
Mr. GOODLATTE. It is my understanding that the EPA strongly opposes that bill, and I am wondering if the reason the EPA opposes it is because it is afraid of reports like the one the NRC, the National Research Council, just released. Is it possible the EPA does not want the National Academy of Sciences to review its science because its science is so fundamentally flawed?
Mr. HATHAWAY. I could not speak to that question. I believe we know what we need to do in the area of science. I believe we need to just get on with it, with the right direction and resources and funding.
Mr. GOODLATTE. But if the EPA is confident of its science, why would it not welcome the National Academy of Sciences and its credibility to study and verify once and for all the validity of the science that is in question here?
Mr. HATHAWAY. I really could not answer that question.
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Mr. GOODLATTE. Well, I think the NRC report strikes right to the heart of why the EPA is so strongly opposed to Chairman Combest's legislation, and I think it is reflective of the fact that the Agency has some severe shortcomings in terms of the information it is using in making its decisions and does not want anybody else reviewing it.
And in another area that has been addressed here, particularly by the gentleman from Texas, the EPA realizes that it has very little support for its proposed rules among the affected stakeholders and Congress. And whether those stakeholders are environmental groups in one hand, or farm or forestry-based groups on the other, the proposed rules violate the Clean Water Act. They are based on fundamentally flawed science, the forestry community opposes them, all of American agriculture opposes them, the States oppose them, as we have heard today, and most of Congress opposes them. It is pretty obvious that the EPA's decision to remove the forestry provisions from these rules is a cynical and desperate effort to find support for its proposed rules in the Congress among those members who most strongly oppose the forestry provisions.
The EPA also hoped that by carving forestry out of the proposed rules, it would split the forestry community off of the large coalition that has united in opposition to the EPA's position. Obviously, thus far, this has not worked.
Next, the EPA engaged a number of stakeholders, including the most prominent members of the environmental community to try and cut a deal in order to get enough support to finalize its rules. Unfortunately, the EPA got caught red-handed in the act. If these meetings in Washington were in good faith, the EPA would have given the same opportunity to all stakeholders that it gave to this small group of Washington insiders, but it did not.
Ladies and gentlemen, what we are seeing here is Washington-knows-best political deal-making at its worst. That is why America's farmers, rangers, foresters and landowners do not trust the EPA. At this point, the EPA has lost its credibility with regard to open and fair public process. It is obvious to me and probably everyone else here that the EPA is more interested in doing whatever it takes to get these rules done than to get them done right. Because the integrity of these rules is hopelessly tarnished, the only reasonable course left to the EPA is to withdraw these rules entirely, go back to the drawing board and start over on a policy that is founded on sound science, fair public process and the support of the affected stakeholders.
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If the EPA is unwilling to do what is right and withdraws its rules, the Congress will have no choice but to act, and that is why we have introduced H.R. 4502, which I believe has been cosponsored by every member up here. The purpose of the bill is to stop the EPA from continuing to make a political football out of the livelihoods of good people like you and others just like you all across the country.
That is all I have. I do not know if any of the other members have any other questions of this panel.
[No response.]
Mr. GOODLATTE. Let me thank all of you, Mr. Hathaway in particular, I want to thank you for having to listen to this. Again, you have an excellent reputation for the work you do here in this division. And if you have anything further you would like to add, we would certainly welcome hearing it at this time.
Mr. HATHAWAY. No, sir, I have nothing further. Thank you.
Mr. GOODLATTE. All right, thank you. And I thank all the members of the panel.
At this time we will call the second panel to the table. Mr. David Hillman, the president of the Arkansas Farm Bureau, from Almyra, AR; Dr. Carol Engle, Aquaculture Fisheries Center, the University of Arkansas at Pine Bluff; Mr. Thomas Michael Freeze, aquaculture farmer, Keo Fish Farm, Inc. in Keo, AR; and Mr. Jim Francis, a tree farmer from Clark County, AR on behalf of the Arkansas Forest Association.
Thank you. I would like to welcome all of you. Remind you that any written statements you have will be made a part of the record, and ask you to limit your remarks to 5 minutes. And we will begin with Mr. Hillman. Welcome.
STATEMENT OF DAVID HILLMAN, PRESIDENT, ARKANSAS FARM BUREAU, ALMYRA, AR
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Mr. HILLMAN. Thank you, Mr. Chairman.
My name is David Hillman and I am a rice, soybean, wheat farmer from Almyra, AR. I am also president of Arkansas Farm Bureau Federation and I will be addressing remarks today representing the Arkansas Farm Bureau.
You have my written statements, and I am going to be kind of like a country preacher today, not preaching to the choir, but I have got this great choir behind me and everybody out in front of me is converted, so I can pretty well say what I want to.
But we have about 216,000 families that are members of Arkansas Farm Bureau, so we do have a good constituents base. And Mrs. Emerson, I often wonder just what we would be if we had that bootheel of Missouri, that part that ought to be Arkansas——
Mrs. EMERSON. Cannot have it. [Laughter.]
Mr. HILLMAN. My friend up there, Charlie Kruse we debate that quite often back and forth between each other. But that is a wonderful part of Missouri, and a wonderful farming country, and I am real envious of those people that have the opportunity to farm up there. But I am digressing.
We are here today to talk about the EPA's—can I call it land grab, power grab, that they are trying to do on TMDLs? What they want to do, if they are successful at this, in my opinion, is override State law. I have learned to have a great deal of respect for Mr. Bill Hathaway over the last 4 or 5 months since this has been going on and has been active, but he would tell you that there is no intent to override State law. I disagree with that. I know when the EPA comes in and they give you these guidelines and suggestions in their proposed regulation, it tells us that if they do not approve of the job the State is doing, they have the authority to come in and take over the administration of that program. They say they never have, that does not mean they will not in the future.
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So this should be something that is left to State control that, by their mere presence, their intimidation factor does not allow them to do that. It requires their review by EPA and their approval, and if they do not do it, like I said, they have the power to dictate land use to achieve these goals. In other words, the Federal Government will be coming in and telling these private landowners what they can and cannot do. I think that is against Federal law.
In the Clean Water Act of 1972, Congress designated the TMDL program in section 303. Section 303 deals with point source pollution. Section 319 deals with non-point source pollution. There is nothing in section 319 that even mentions TMDLs. It is all directed toward point source pollution. And the 319 program has been very successful in Arkansas, with the Department of Environmental Quality, the Arkansas Soil and Water Conservation Commission, we have made tremendous strides in meeting these goals in making our waters fishable and swimmable. And I think we have been real successful at it.
EPA has also misjudged key determinants, such as the likely cost to the State and Federal agencies and to the private sector. And Mr. Chairman, I was kind of going over some of the facts that you showed us on that chart, and to give them the benefit of the doubt, they over-estimated the number of streams that were impaired by a factor of ten. I will submit to you that they have under-estimated the cost by a factor of 10 also.
In my opinion, if the EPA is allowed to implement this regulation, what it is going to do is provide for Federal land use regulation. Congress, for good reason, elected to treat point source and non-point sources differently. Non-point source pollution did not lend itself to rigid controls. Farmers and ranchers cannot control rain. If they did, we would have more of it when needed and less when we did not need it. But how can you expect us to comply with rigid TMDL rules when we cannot control so many of the factors?
All four of the components of the term total maximum daily and load imply a constant engineered and controllable environment. That does not stand in agriculture. Farmers are in jeopardy of breaking the law every time it rains. To me, this is preposterous.
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Section 319 says that States are to reduce pollution to the maximum extent possible. And there is a statement that I like to make, and Marion will agree with me on it, there is not a stream in this State, at least in my part of the State, that I would not drink the water if I was thirsty enough. I was teased here a couple weeks about, yeah, you drink ditch water. Well, there is nothing wrong with that. As far as I am concerned, it might not be real pretty, it might not taste all that good, but it is safe to drink. I have not got sick from it yet and I have been doing it 50 years.
In my opinion, the TMDL program will fail if environmental extremists are permitted to hijack the process so that they can further their agenda on Federal water zone planning.
Just kind of an aside, and I see my light is on, this case out in California, this Prusselimo case, the judge in that case, Judge Alsop, that the EPA wants to hang their hat on, ruled that they did not have the authority to regulate the non-point source. Judge Alsop was also an acknowledged member of the Sierra Club. This has been appealed to the Ninth Circuit Court of Appeals out there. We refer to it as the green court. We think there is a real good chance that they will overturn this ruling that EPA tries to hang their hat on, and if they do not, they have an 87 percent reversal rate on cases that get to the Supreme Court. So even if they do not get it right, we think the Supreme Court will.
My time is up. I would like to conclude with this: Farmers have always been willing to do what is necessary to protect their property, to protect their land, to protect their values. All you have to do is show us that it needs to be done. We have been doing this since back in the 1930's when we learned that if you plow around and around the hill rather than up and down it, you save soil. Give us the practical way in order to solve this problem, and we will be glad to do it. Provide the technical and financial assistance, the means to do it. Like we have done with NRCS for years and years and years, in my opinion, this is what we need to do. You do not need to tell a farmer what to do. You show him what to do, you get out there and help him with it. The bottom-up approach works a lot better. Ask us, do not tell us. And like I said, NRCS is a good example. If we have got a problem, show us a need and we will be glad to correct it.
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Thank you.
[The prepared statement of Mr. Hillman appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Hillman. Ms. Engle, welcome.
STATEMENT OF CAROL R. ENGLE, DIRECTOR, AQUACULTURE FISHERIES CENTER, UNIVERSITY OF ARKANSAS AT PINE BLUFF, PINE BLUFF, AR
Ms. ENGLE. Thank you. I am Carol Engle with the Aquaculture Fisheries Center at the University of Arkansas at Pine Bluff. I am also an economist that works in aquaculture economics issues with over 20 years experience in looking at economics of aquaculture. My comments today are on behalf of the Arkansas Bait and Ornamental Fish Growers Association, but I have also recently been asked to chair the economic subgroup of the Aquaculture Effluents Task Force that was formed by USDA and am actively spending time on this particular issue.
As you probably know, aquaculture is a major industry in this State with farm gate sales of about $170 million, economic impact in the State of $1.3 billion, most of this in the Delta region that needs these jobs and needs the economic growth and development.
There is a critical point with aquaculture. It is a form of agriculture, yet it is being treated differently by EPA. Because any water that might leave a fish pond leaves through a pipe, it is classified as a point source of pollution and is undergoing a different kind of process from the non-point sources of pollution. I think it is important, and I would like to spend just a minute to go through what aquaculture is facing right now within EPA, as a point source of pollution.
In 1997, an environmentalist group called the Environmental Defense Fund published a document called ''Murky Waters.'' In this document, it contended that and listed aquaculture as a major polluter, a major source of pollution for our waters. But they presented no scientific data to support this whatsoever.
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Following this, EPA initiated a series of actions to begin to list and lead towards a rulemaking process for aquaculture. In 1999, EPA said that they were going to do a preliminary study on the effect of aquaculture, however they never completed this study. In January of this year, EPA abandoned this study and decided that they were going to proceed with a formal rulemaking process for aquaculture. That is what the industry is facing right now.
As part of this rulemaking process, EPA has said that they are going to do a nationwide survey of aquaculture operations and have prepared a prepared draft questionnaire that is 31 pages to determine and collect very, very detailed comprehensive financial information on every aquaculture operation in the United States. I have looked at this, and others who have looked at this realize that most fish farmers do not have the records to comply with this and would have to be able to go out and hire someone to collect the type of information that they are requesting in this draft questionnaire that is available at this point in time.
A lot of our concerns of those of us working with the task force, economists with experience in aquaculture, the top aquaculture scientists in the United States are concerned as to what extent we might have the ability to review and have access to do independent reviews of these data. The economists on the economic subgroup have requested clearance to have access to the data that are to be collected. We have been told that that is likely to be very problematic, and that we will not be able to have access to any data that EPA will use in order to make their determination.
There are several other things that are bothersome with this process. No data have been presented to show that pond aquaculture actually impairs our streams. No data have been presented, and yet EPA is in the process of developing formal rules to regulate this. In fact the studies that have been done show that pond water quality is of better quality than the water in many receiving streams in the Delta. Fish ponds themselves are very efficient aerobic lagoons. That is what a pond is. It is a very efficient system and there is a lot of scientific data to show how well these ponds treat the feed that is going into these ponds.
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Pond aquaculture businesses reuse a high percentage of the water discharged from ponds, many ponds are drained only rarely, often after many years of use. In addition, many fish farmers have been adopting best management practices that further reduce any water volumes discharged and have improved the quality of water that is discharged.
Discussions with EPA have indicated that when they talk about economic achievability and acceptable economic levels, what they mean by that is a closure rate of 5 to 20 percent of businesses. And so they are talking about developing regulations based on detailed financial information that may increase costs to the point that five to 20 percent of aquaculture businesses may be closed, and yet there is no proof that any action of this sort will actually improve the quality of our waters, and it would definitely have very dramatic, negative economic consequences in the Delta and elsewhere.
Some other points that are critical to this. 93 percent of bait fish farms and 84 percent of catfish farms are classified as small farms according to the recent survey in the year 2000. And so increasing these costs due to new treatment regulations will have a disproportionate and adverse effect on small farms. It would increase barriers to entry. There are no economic support programs for fish farmers, and this will make their businesses much more difficult.
Most of these farms are located in the most economically depressed areas of the United States, even a small number of closures would have a relatively great impact on the economy of the region.
The United States has a major trade deficit in fishery products that would become worse if the U.S. aquaculture industry becomes less competitive through higher costs. Fish farming provides an alternative to wild fish captured by commercial fishermen. Decreased production of farm-raised bait fish and catfish will result in increased demand for wild-caught fish that may well have other environmental impacts.
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So in summary—and my time is up—essentially I applaud the committee's efforts to inject some science and some sound science into this process. In aquaculture, no data have been presented to show that this industry is hurting the environment, yet they are proceeding to regulations that are very likely to have enormous and negative and adverse impacts on the economies of these regions.
Thank you very much.
[The prepared statement of Ms. Engle appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Ms. Engle. Mr. Freeze, welcome.
STATEMENT OF THOMAS MICHAEL FREEZE, AQUACULTURE FARMER, KEO FISH FARM, INC., KEO, AR
Mr. FREEZE. Hi, my name is Mike Freeze. I am a Lonoke County fish farmer and I am representing myself, Keo Fish Farm and the National Aquaculture Association.
When all of you all get on the plane and head back to Washington, DC, I want you to look out the window because you should see approximately 30,000 acres of fish ponds in Lonoke and Prairie County. As Dr. Engle told you, all of these ponds are already regulated by EPA because, as a fish farmer, I am regulated by EPA as a point source discharge, because when I drain a pond, the water from that pond flows through a pipe that is embedded in that levy. Now if I was to plant rice in that same pond and drain that water through that same pipe, I am sure that EPA would still want to classify my drainage as a point source discharge. But then really that is not going to matter anymore because under the proposed regulations for TMDLs, EPA will have finally found a way to regulate non-point sources as well as those that are defined as point sources.
As Carol told you, the aquaculture industry has been selected as one of two new industries that EPA wants to draft additional regulations for. These new regulations will be finalized in June 2002 and they are going to be implemented in June 2004. Between this industry-specific initiative and the proposed regulations for TMDLs, I honestly think that the aquaculture industry is facing a serious regulatory nightmare. EPA representatives have already told us that they want to measure the nutrient difference between a fish farmer's incoming water and the water that he eventually discharges. Since almost all fish farmers begin with sterile well water and then we have to add fertilizer to that water for proper fish production, I expect that these nutrient differences are going to be quite large.
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It does not seem to matter that the water being discharged may be of a higher quality than the receiving stream. EPA wants to compare our discharge to the unrealistic parameters of well water. Nor does it matter that a fish farmer's own profitability is dependent upon his ability to maintain a high water quality in his production ponds. Remember, we raise fish for a living, and our water quality must be sufficient to support those fish. Now if you add on top of regulations that we are already facing under point source discharge the new proposed regulation for TMDLs, I can actually someday see a representative from EPA that is telling me whether or not I can feed my fish on a particular day, when I can harvest my crop and when I can drain a pond based on some kind of a nutrient model that is in Washington, DC.
In my area of Arkansas, many of the receiving streams are little more than man-made ditches and that have had their hydrology dramatically altered in the past. Many row crop farmers irrigate out of these ditches in the summer, and are dependent upon the release of water from fish farms, to a certain degree, to maintain an adequate supply of water for crop irrigation. In practice, it is similar to a tail water recovery system for a rice farmer. The water that a fish farmer discharges in the summer is often pumped out of the receiving ditch within a fraction of a mile from where it enters a ditch. Such a practice is a win-win situation. It reduces the row crop farmer's dependence on a fragile aquifer and it recycles both water and nutrients. Under the proposed TMDL regulations, will the fish farmer be penalized for providing free irrigation water to his neighbor? I hope not.
You know, farmers are the ultimate conservationists. They depend upon the soil for their living and we want to be good stewards of the land and pass our land on from generation to generation. Yet unrealistic Government regulations, such as those proposed for TMDLs, will make this increasingly difficult to do. The financial burden that increased governmental regulations places on the American farmer cannot simply be passed on to the consumer. Currently, the aquaculture industry in our country is prospering, yet with the unwarranted attention our industry has been given by EPA in their inherent need to regulate, that may or may not be the case in the near future.
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All of this can be summed up by stating that if EPA would just use a little—and I stress little—common sense in their justification of TMDLs, as well as other regulations, then the aquaculture industry and all the other agricultural entities might not be so leery of these proposed regulations. Unfortunately, that has not been the case to this point.
I applaud your efforts to bring some common sense to the TMDL problem and would like to go on record in support of Senate bill 2417.
Finally, I would just like to say how much I appreciate all of you taking the time to just simply listen. Thank you.
[The prepared statement of Mr. Freeze appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Freeze. Mr. Francis, welcome.
STATEMENT OF JAMES H. FRANCIS, TREE FARMER, CLARK COUNTY, AR, ON BEHALF OF THE ARKANSAS FORESTRY ASSOCIATION
Mr. FRANCIS. Mr. Chairman and members of the committee, thank you for conducting this hearing and permitting me to testify. My name is Jim Francis, I live in Little Rock where I have resided since 1951. I come before you as a member of the Arkansas forestry community, a PNIFLO, an acronym for Private Non-Industrial Forest Land Owner.
We more than 100,000 PNIFLOs own 57 percent of the commercial forest land in Arkansas. Mrs. Francis and I own three modest-sized tracts of woodland. One in Clark County and two in Nevada County, purchased piecemeal during the 1960's and early 1970's and totally somewhat less than 600 acres. This was not the forest primeval. It was farmland abandoned from cultivate during the 1930's and early 1940's. Most of it stocked with naturally regenerated southern pines and various hardwood tree species.
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I became a registered tree farmer as soon as I was eligible. I found that forestry folk in Arkansas would share generously of their time, knowledge and experience to help a transplanted damn yankee from the corn belt of Illinois learn more and more about the management of a southern forest. So over the past 39 years, with the help of many persons in our forestry community, I have learned a lot about silviculture. It is the practice of agriculture in slow motion. Incidentally, tree farming is not the way to make a fast buck.
But I have learned some other things, too. One, pertinent to the subject of this hearing, is the fact that if one owns land with trees growing on it, some persons claim the right to dictate what the owner may and may not do in the responsible management of such private property. They are the anti-forestry advocates, the self-proclaimed environmentalists, dedicated to ending timber harvesting and forest management practices on all publicly-owned lands, and impeding in every way possible the management of privately-owned forests, both industrial and non-industrial. I term the extremists—and it is the extremists among these acting individually or as leaders and spokespersons for organizations, for example the Sierra Club—the PPZs, the preservationist-primitivist zealots. For sake of brevity and descriptive accuracy, I shall hereafter refer to them as such.
The written and oral testimony from many other witnesses documents the fact that forestry contributes no significant pollution to the waters of Arkansas. My enclosure No. 1, a statement from the Arkansas Division of the Society of American Foresters, authored by Dr. John Gray, who is here today, to the EPA in Washington summarizes this subject clearly and succinctly.
My enclosure No. 2 is an article from the Arkansas Democrat Gazette of December 30, 1999. In it, I am quoted as saying that the EPA's TMDL proposal is preposterous. It is. To attempt to brand forestry in Arkansas as a point source of pollution is absolutely preposterous. The same article quotes Tom McKinney, the Sierra Club's principal spokesman in Arkansas, as saying, we think the new regulations should affect the forest industry. That is a big, fat yes.
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I am quoted further as saying that I believe the TMDL campaign is a slick move by the anti-forestry advocates—read PPZs—to find some way to stop forest management and timber harvesting. I do, indeed.
At the Senate subcommittee hearing on Senate bill 2417 in Hot Springs last Monday night, Mr. Cook of EPA's Dallas Regional Office, eventually admitted that lawsuits filed by environmentalists—read PPZs—were the reason for EPA's crunch-time actions regarding TMDLs. Subcommittee Chairman, Senator Crapo of Idaho, questioned the reason for EPA's recently stated intention to remove forestry from deadline dates in July and deal with us separately later on. Was this a strategy of divide and conquer? I suspect so. They did it before and succeeded in banning the use of 245-T. If we do not hang together, we are more likely to be hanged separately.
So I do believe that this TMDL farce is merely the latest and current effort by the PPZs to achieve government regulation of forest management practice, this time bypassing our legislative bodies and usurping their authority via bureaucratic agency regulation. My full written testimony and several enclosures illustrate other attempts here in Arkansas over the past 20 years by the PPZs to shackle our forestry community and infringe upon my private property rights.
A final enclosure is a book by Dr. Patrick Moore entitled Green Spirit. I wish it were required reading for every person having any influence on public policy regarding forestry in this nation. Do not be surprised if some PPZ labels me a paranoid, part-time Arkie tree farmer and running dog of forest industry. But their words will never harm me. But please, please do not permit anti-forestry extremists within and outside of the EPA to hoist this preposterous point source of pollution label upon forestry. We do not deserve it.
Thank you for your courtesy. I will be pleased to answer any and all questions to the best of my ability.
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[The prepared statement of Mr. Francis appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Francis. We are running a little short on time for questions of these panel members so I will be brief in mine. I would like to just get the reaction of each of you to this most recent revelation that the EPA has been conducting secret meetings with environmental groups and some of the other stakeholders, and your opinion about whether or not you think these meetings prejudice the outcome of the rulemaking process. Mr. Hillman?
Mr. HILLMAN. I think that probably EPA invited these people to come in. The present Administrator of EPA is a noted environmentalist and really does not care anything about anybody except those people that share the same agenda that she does.
Mr. GOODLATTE. Ms. Engle?
Ms. ENGLE. I have heard a number of comments on the Aquaculture Effluents Task Force, that they suspected that this kind of thing was going on, and I have heard some individuals say that they are all classmates and that individuals from the environmentalist groups have open access to EPA officials, whereas university scientists do not. And I have heard those comments on the part of other people on the task force, so it was not a surprise to me because I have heard this kind of speculation.
Mr. GOODLATTE. Mr. Freeze.
Mr. FREEZE. It certainly does not surprise me, and at the same time I think it would have to most certainly taint EPA's reputation on the public.
Mr. GOODLATTE. Mr. Francis.
Mr. FRANCIS. No surprises. More of the same old, same old. Yogi Berra is quoted as saying—referring to deja vu all over again. I do not speak French, but somebody said deja vu translated to Arkansanese as same old, same old. So I guess deja vu all over again is the same old, same old, same old. [Laughter.]
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Mr. GOODLATTE. I will buy that. Well, and I guess the silver lining of that may be that it is only fair, is it not, only reasonable, that if these folks got a second cut at the deck that maybe everybody else ought to, too, and that pulling back on this rush to issue these final rules and to allow each and every one of you and the organizations you speak for and the organizations represented by so many other people in this room also have an opportunity to have a place at the table and to comment on the newest draft of these rules by delaying the issuance of those rules. Anybody want to comment on that? Yes, Mr. Francis?
Mr. FRANCIS. I am available.
Mr. GOODLATTE. Good.
Mr. FRANCIS. The only comment I would like to make is that when they issued this back in August 1999, they did not have it right then. They revised it in March of this year, they did not have it right then. They have revised it again in April, it was not right then, by their own admission, because they revised it again in June. Why does anyone think that they are going to get it right in the final draft?
Mr. GOODLATTE. I do not know that anybody does, but as long as they are revising rather than regulating, we prefer it. [Laughter.]
Mr. Berry.
Mr. BERRY. Thank you, Mr. Chairman. My only question would be to Mr. Freeze or Ms. Engle. Do you think that this proposed legislation or the language that we have in the appropriations bill will deal with your problem about aquaculture being determined as point source?
Mr. FREEZE. I do not know that it will. I would hope that somebody would be looking at that. You know, we—as Dr. Engle's testimony, I will say that we feel that we have been fairly singled out. They are not using good science on their potential regulation for our point source discharge and we are really worried about that, that they are going to treat us the same way that they have been doing these regulations on TMDLs.
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Ms. ENGLE. I have not seen all of the language in the legislation, but the sense on this task force meeting that I was at in Washington 2 weeks ago is that they are marching ahead to put these regulations in place for aquaculture. I think some additional work may be needed on a legislative level to be able to inject some science and some rationality into this process that aquaculture is facing. And I think that there may be a need for some additional action.
Mr. FREEZE. Marion, I might add, too, in Dr. Engle's report, it states that EPA has an acceptable level of about 20 percent of the businesses based on the fish farmers going out of business, and I find that totally unacceptable because I might be one of those 20 percent.
Mr. BERRY. We find it unacceptable, too.
Mr. FREEZE. Thank you.
Mr. BERRY. No further questions, Mr. Chairman.
Mr. GOODLATTE. Thank you. Mr. Moran?
Mr. MORAN. Mr. Chairman, I have no questions of these witnesses. I appreciate the information that they provided. Kansas is growing a bit as an aquaculture state, I know a little bit about that. I do not know that we will ever become a forestry state, but Mr. Francis, we share your concerns. Thank you.
Mr. GOODLATTE. You are going to have to find the water somewhere to do that.
Mrs. Emerson.
Mrs. EMERSON. I am sorry, I really do not have any questions either, other than to thank you all for being here, and particularly Mr. Hillman for your comments with regard to the Farm Bureau and the great work that you do on behalf of all the producers throughout the State of Arkansas and the impact that this potential rule could have on their livelihoods and their families' livelihoods. It is very critical that we stop it immediately.
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Mr. GOODLATTE. Well, I also want to thank you for your participation. You have been very, very helpful. We share your values very much, and we appreciate your being very expeditious about it as well and keeping us on schedule. So I thank you again for your participation.
Our third and final panel is comprised of Mr. Johnny B. Loftin, the poultry producer from El Dorado, AR; Dr. Bob Good, commissioner of the Arkansas Livestock and Poultry Commission; Mr. Jerry Masters, executive vice-president of the Arkansas Pork Producers Association from Russellville, AR; and Mr. Mark Troutz, executive vice-president of the Arkansas Cattlemen's Association in Little Rock.
Mr. Loftin, we are pleased to have you with us and you can be the first off.
STATEMENT OF JOHN LOFTIN, POULTRY PRODUCER, EL DORADO, AR
Mr. LOFTIN. Thank you, Mr. Chairman and members of the committee. I am glad to be here. I am Johnny Loftin, a contract poultry grower and independent cattle and timber raiser. I have lived on a farm for 62 years, all my life, 62 years. Thirty-eight years of those have been in the poultry production, 12 years of those were spent in supervision of poultry production with a local poultry company. During this time, I have seen numerous changes in the production of poultry. Poultry growers, like other landowners, are concerned that EPA proposed TDMLs would lead to more restrictions on the way we use our private property.
Poultry producers in Arkansas already adopt the best management practice to deal with their manure management process. These practices are being done voluntarily, and to our knowledge in a successful manner. Practically all poultry growers have implemented the BMP concept, which has been very costly to each person. The proposed TDML rules would only add another layer of compliance to efforts already under way.
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In addition to any compliance steps associated with TDMLs, poultry producers also face other challenges from the alphabet soup of EPA programs. These include the Agency's AFCO and CAFO requirements for large operations. The possibility of NPDES permits, emerging standards for a certified nutrient management plan. The costs to producers for compliance with the current and proposed environmental rules is estimated about $14,000 for 30,000 capacity broiler house. And if you use these standards here, most of your people in the poultry industry do not net that much per house on a poultry farm, anyway. They would be out of business.
I too am concerned with the data that agencies use to justify their regulatory actions. An independent review of scientific and cost components of TDMLs and EPA rules is needed. If farmers are to comply with certain standards, let us make sure they are done right instead of done quickly. Other farmers and I are willing to do these things necessary to protect our natural resources. We live on the land, we depend on the water, we breathe the air. It is our livelihood. It is in everybody's interest to protect these elements. It is ours.
We have a good partnership now with several of our Federal and State agencies. A partnership that promotes and assists in voluntary initiative to address non-point source pollution. The TDML process as applied to non-point issues represent a concept that at least needs further clarification and study, and at most needs to be limited to only point source concerns. These and other regulatory issues that my fellow farmers and I face do add directly to our operation cost. The costs cannot be passed on, they must be absorbed into my production expense budget. Anything you do as an agency will cost me personally. I am the one asked to comply and to pay for it. A continued ratcheting up of regulatory requirements sooner or later will force many producers out of business.
Thank you.
[The prepared statement of Mr. Loftin appears at the conclusion of hte hearing.]
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Mr. GOODLATTE. Thank you, Mr. Loftin.
Next we are pleased to have Dr. Bob Good, and before you start, I just wanted to ask you, what did you do with the second half of your last name?
Mr. GOOD. I licked it off. [Laughter.]
Mr. GOODLATTE. All right. We are glad to have you with us.
STATEMENT OF BOB GOOD, COMMISSIONER, ARKANSAS LIVESTOCK AND POULTRY COMMISSION
Mr. GOOD. Thank you, Mr. Chairman. Thank you very much for coming and being with us today and allowing us to express our concern. I am really Carol Browner and I am here to unravel all this mess that you all are trying to determine. [Laughter.]
And that is the only two lies I am going to tell you today.
Mr. GOODLATTE. You are wearing an excellent disguise.
Mr. GOOD. I am a farmer over in London—London, AR, that is. I am an environmentalist, and I am an animal welfarist. I am not a fanatic about any of them, although I love farming. And as has been pointed out very aptly here by Mr. Loftin, we are all environmentalists, all farmers. If we do not take care of our land, our crops, our livestock, our water and our air, then we will be out of business.
I grew up on a farm in the 1930's and 1940's, and I have been farming myself for 33 years. I have a nutrient management plan for my farm, I have had it since 1991. I grow chickens for Tyson Foods. Tyson Foods requires a nutrient management plan before I can get chickens on my farm. This nutrition management plan, thank goodness Tyson has helped us pay for, and what Tyson has not paid for the State has helped us out on, so it has not cost me anything to this point.
I would point out, though, that under normal circumstances a nutrient management plan would cost a farmer between $1,000 and $1,500 depending upon his farm, and this is just the tip of the iceberg. It is the implementation of these plans that costs the money, not the cost of the plan itself.
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My nutrient plan was formulated in 1991 and formulated on nitrogen. And now we are told my plan is no good, it is based on phosphorus, and so I have to start all over again. I cannot put any of my chicken litter on my farm because my phosphorus level is way too high. All my chicken litter is cleaned out and hauled right here to Lonoke and put on the farms here in Lonoke.
Voluntary nutrient management plans work. We have a little stream up in northwest Arkansas known as the Illinois River. It is fed by the Muddy Creek and Moore's Creek and Oklahoma sued Arkansas several years ago and we had to clean it up. And they sued on phosphorus levels. Voluntary nutrient management plans were instigated on the watershed of those two creeks, and in just over 3 years, the phosphorus level dropped 33 percent, and that was on a voluntary level.
Then the several agencies, to include the Arkansas Water Conservation Commission and the National Geological Survey system and others, other groups, they decided that they were going to conduct surveys of 14 springs and wells in Carroll County, and this was after they had previous data to any animal livestock waste being spread in this area. They had baselines, in other words. They surveyed these creeks and springs and wells, and over a period of time there was no significant increase in 20 constituents of water from the baseline. And this was after several years of spread of these manures and chicken litter.
Then they thought that that was not too good, so they surveyed nine springs and wells in Boone County with the same results. As of today, Dr. Van Brahana at the University of Arkansas, he is a hydrogeologist, is doing a long-term survey of 401 areas of standing water, 601 seeps and small springs, 69 deep wells, 147 shallow wells. And he is doing this over a long period of time, and to date there has been no significant increases in any of the nutrients. Dr. Brahana, I had the privilege of visiting with him not too long ago and I asked him, in his opinion, what was the cause of the impairment of the streams in northwest Arkansas? And he said, ''The vast majority of it is leaking septic tanks. And you can quote me on that.'' It is not farming operations.
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No one in the world appreciates clean water and air better than the farmer. We depend on it for our livestock, our crops and most importantly our families. Mr. Adams in Congressional hearings said, this is about farmers, ranchers, their livelihoods, businesses and families. And let us hasten to add, and feeding the American people. To the bureaucrats here, I would like to say, do not expect me to feed you when you are trying to put me out of business. Also I would like to ask, what are you going to do when you hand the public a clean glass of water but he has no food to eat? And there is 1 million small farmers standing there saying, we would like to feed you but the Government will not let us.
To our politicians here, who I very much appreciate, is please stop this nonsense before EPA puts all of us small farmers out of business. Thank you.
[The prepared statement of Mr. Good appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you. Mr. Masters, pleased to have you with us.
STATEMENT OF JERRY MASTERS, EXECUTIVE VICE-PRESIDENT, ARKANSAS PORK PRODUCERS ASSOCIATION, RUSSELLVILLE, AR
Mr. MASTERS. Thank you, Mr. Chairman and members of the committee. First of all I would like to say, I thank everyone in this room, we feel very fortunate that we live in a country that has the safest, wholesome, most abundant and most economical food supply in the world. And I think that is thanks to our American farmer. And I just think that we need to remember and try to protect that.
And these TMDL regulations, they do, they threaten the livelihood of the farming community and could very easily put farmers out of business. We would like to ask you to put the brakes on EPA's far-reaching and over-reaching authority of these TMDL regulations.
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It is evident that EPA continues to listen to the radical environmental groups, and these environmental groups, they deal in sound bites and not in sound size. Well, that is exactly what they have done, and they have reached this group of people at EPA, and it just continues to be that way as they do deal in sound bites.
And I do not know a farmer that is not a true environmentalist. And our pork producers, they live on the land, they drink the water where they live, their animals, they drink that water. So it is really important that we make sure that our water is safe to drink, that we do have clean water. I think that we need to allow our States, at least in this State, to monitor our water quality issues.
We have an excellent relationship with our State agencies in this State, I think we are very fortunate. Our ADEQ, our Arkansas Soil and Water, Cooperative Extension, University of Arkansas, NRCS, they have just work with us in abundant ways, and we have worked with them, and we have done several different programs as pork producers. I would like to explain to you what we have done I think to make our environmental track record much better, to educate our producers
In 1998, Arkansas Pork Producers Association was awarded the Environmental Excellence Award on some work that we did in the Buffalo River, and we worked with ADEQ on that project. And we were the only agriculture group, to my knowledge, that has been awarded that. But we worked up there working with several different swine facilities and working on water quality.
Our swine producers, for the most part, are under State water permits, and part of that regulation or part of that requirement for them to be there, our producers all have to go to annual education classes. Those classes are conducted by our Cooperative Extension Service. In order for them to maintain their permit, they go to these. Since we started that back in 1992, and I would like to say that the industry is one that went to the table with the idea to educate our producers. This did not come from environmental groups. We went and we said, we would like to do this program and we began educating our producers in 1992. And since then, violations have continued to go down, and our producers have become more educated, and we go in there and they know the newest in technology. We have worked very closely with them, and that program has worked extremely well.
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Two out of the last 3 years, Arkansas producers, pork producers, have been awarded the National Pork Producers Council Environmental Stewardship Award, and we are very proud of that.
Also we work with our producers on a monthly audit of all our swine facilities. And what we do on that, we try to identify the needs of how we need to improve our facilities and how our producers can do a better job of being better environmental stewards. And this program has been—is with a memorandum of agreement with the Department of Environmental Quality here in the State, and this program has been very successful.
We also have done air quality surveys on our swine facilities in trying to look at that to improve. So I think my point here is this, when you go to producers and you show them, and you talk to them on how we can improve, they are very good to respond and they are very good to come to the table and make sure that they are environmental stewards.
I will leave you with this point. I just urge you to act to prevent severe regulatory burden, allow agriculture to continue to use their best natural practices, and to please base all further action that we have upon agriculture producers on sound size not sound bites.
Thank you.
[The prepared statement of Mr. Masters appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Masters.
Mr. Troutz, welcome.
STATEMENT OF MARK TROUTZ, EXECUTIVE VICE-PRESIDENT ARKANSAS CATTLEMEN'S ASSOCIATION, LITTLE ROCK, AR
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Mr. TROUTZ. Mr. Chairman, committee members, I suspect that I am probably the one everybody wants to hear today, is the last one. But my name is Mark Troutz and I represent the Arkansas Cattlemen's Association, and we really very respectfully submit these comments and wish to tell you of our appreciation, to really tell our side of the water quality story.
There are over 32,000 cattlemen in the State of Arkansas, and we believe their best interests are truly in jeopardy. The average farm size in the State being about 28 head, you can see that we truly are small farming, small agriculture.
Clean water is one of the top priorities of our cattlemen. Clean water equals healthy cattle, healthy cattle equal a profitable operation. Without clean water, our cattle simply do not produce as efficiently as needed. As good environmental and financial managers, we are already taking the necessary precautions to provide clean water for our livestock, and certainly for ourselves.
Arkansas cattlemen face serious enough opposition from external pitfalls such as adverse weather and adverse pricing without also facing the loss of business caused by the EPA. With the down cattle market over the last few years, many producers are in fear of substantial threat to their livelihood by the EPA. Additional costs of production without the ability to set our own market price only set cattle producers up for significant losses.
EPA's current flawed data on dioxin is only another example of the lack of logic floating upon the winds of politics. It is no wonder that cattlemen see non-point source pollution control as guesswork at best. Combined with pseudo-science used by the EPA, cattlemen have concerns that this may be another carpetbag type of move. The EPA has no legal authority to direct and regulate non-point sources. The most probable outcome from the new proposed regulations will be a disastrous loss of income as cattle producers try to comply with all these rules based on flawed science, or actually on no science at all.
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How can a pollutant load be identified when there is no numeric standard to measure it against? The EPA defines the evaluated data and information as a justified replacement for monitored data. This will only lead to more pseudo science that ultimately works against the true purpose of cleaning up our waterways.
Since it is fundamentally important for cattle producers and their livestock to have clean water, we would ask that the EPA be severely curtailed in their efforts to run roughshod over the cattlemen of our State. Who decides which operations are animal-feeding operations? With no true feedlots in the State, we feel that more bureaucracy for no cause warrants the investigation into the motives of the leadership of the EPA. And we want to say that we appreciate you doing that.
The staggering costs projected for the TMDL regulations pale in comparison to the monumental effect to be carried out upon the cattle producers of Arkansas. The current cattle market situation notwithstanding, our cattlemen feel that the EPA will utterly ruin their profit picture for the foreseeable future. Therefore, cattlemen see the new regulations as a grab for their farm or ranch. The litigation that will be brought by cattlemen to save their farms may be the very thing that will cause them to lose it. The proposed regulations go too far beyond what is needed to clarify the Clean Water Act. It seems to be purely an arrogant power grab of the State's duly-appointed role.
The Dustbowl era taught cattlemen a powerful lesson. Cattlemen have learned that, to remain profitable, they must adapt and become the best true environmentalists. True environmentalism considers all factors and presents a win-win situation keeping soil, water and air quality a priority. The self-policing efforts of the nation's cattlemen over the last 10 years have been phenomenal. It is believed that the proposed regulations would actually harm and interfere with current plans to clean streams across the country.
The State of Arkansas, the natural State, has some of the most beautiful streams in the country. It is the desired goal of all cattlemen everywhere to improve water quality in streams crossing our ranches. We believe that it is in the best interest of all citizens if we work within the current State systems to clean up pollution, when or if it truly exists.
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We appreciate your time and effort for coming forth to let us share this with you.
[The prepared statement of Mr. Troutz appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Troutz.
I want to thank this panel, I am particularly interested in what you have to say because, representing the Shenandoah Valley of Virginia, while we do have a lot of forestry, we have far more livestock. That is by far the largest agricultural production in my district, primarily poultry but also a good deal of beef cattle. Not so much pork anymore.
But I am wondering what you folks have to think about the idea that suddenly you could just lop off the forestry aspect of these regulations and go right on ahead with regulation of agriculture, particularly livestock-based agriculture. Anyone want to comment on that? Mr. Loftin?
Mr. LOFTIN. We are going to have a big row to hoe, I can tell you, because the regulations, if they go through with a lot of these regulations like they plan on, for poultry especially, it is going to put most of them out of the business in Arkansas.
Most of them, all of them, I would say 70 percent of them do have the best management practice now and doing a good job. And if they go with this thing, it is going to affect everyone.
Mr. GOODLATTE. We have put forward I think some pretty sound scientific evidence of the lack of sound scientific evidence with regard to their proposed regulations and what they base it on with regard to forestry. I wonder if any of you have any comments on the idea that maybe they have got some really sound scientific evidence on which to base the rest of their regulation that they seem intent on going forward with? Mr. Good?
Mr. GOOD. Well, I think you exposed them on the forestry end, and I think the agricultural end would be just as dramatic, if it were investigated, because as we pointed out, a lot of these streams, just on voluntary best management plans, we reduced the phosphorus dramatically. The thing that worries me, I guess, most of all is, I did one on nitrogen, now I have to do one on phosphorus. When I get phosphorus done, is it going to be aluminum or copper or arsenic or chromium? How many of these elements will we go through before they finally decide that we have got our water clean enough?
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Mr. GOODLATTE. Thank you. Mr. Berry.
Mr. BERRY. Thank you, Mr. Chairman. I certainly agree, I think that nearly everything that has been said here today, and I appreciate all of you being here and participating in this, helping us build the record for the fact that, clearly the Environmental Protection Agency has lost sight completely of what sound science is and how it should be used.
I went to Washington, DC in 1993, and I have been asking EPA for some sound science, any sound science they had to back up anything they have ever done. And I have yet to see one speck of it presented in any shape, form or fashion. So I think that we cannot solve any of these problems until we do that, but we appreciate all of you being here today to help us build this record to document this.
I failed earlier to mention the fact that State Representative Randy Minton is here, and we appreciate him being here. And also from Senator Lincoln's office, Cynthia Edwards has been here for most of this meeting.
And I want to bring some good news. In the headlines in Roll Call this morning it says, ''Leaders facing defeat on Cuba.'' The article says that we are going to get a vote this week on lifting the sanctions from Cuba and that we have the votes to do it. So it is not a done deal yet, but that is the best news I have been able to bring home in a long time. So you can go away from here with at least more hope than you came here with.
And I thank you all for being here and participating in this.
Mr. GOODLATTE. Thank you.
Mr. Moran.
Mr. MORAN. Mr. Chairman, thank you. Perhaps for the record, I think I will kind of anticipate the answer that you would give to this question, but Mr. Masters, you in particular indicated it would be good to have agriculture and environmental issues affecting agriculture regulated at the State level as compared to the Federal level. Can you tell us why? What difference do you experience when dealing with a Federal regulator versus a State regulator?
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Mr. MASTERS. It has been our experience here in the State that we have been able to go in and visit with our State regulators and be able to talk about the situations in that certain area that we are working in, because not all areas in this country are alike, not even in the State of Arkansas, sometimes not even in the same county. So we have been able to go in and we have been able to work with them and sit down and do what is best. And we have found that within our State—and we are very blessed here in this State, we have—our State regulators have a lot of common sense. They are looking at it for not only the good of the producer but they are looking at the good of the environment. So they have been able to look at that broad base both ways and it has just been very successful.
Mr. MORAN. Anyone else?
[No response.]
Mr. MORAN. I think Mr. Masters said it well.
And I also assume that the end result is still a cleaner environment, despite the fact that it is regulated by the State as compared to the Federal?
Mr. MASTERS. Exactly. It is a cleaner environment, and we have been able to, like I say, just work with them, and we have several ongoing research projects going on with the State right now just to make sure that what we are doing, that we can go ahead and be proactive and be progressing and do the best job we can.
Mr. MORAN. Several times today, we have heard about how farmers cannot pass these costs on and they come out of the bottom line of the farmer or the rancher.
I think it would be useful for—again, I do not think you are telling me anything I do not know, but would you tell us why it is that those costs cannot be passed on? Why is this so detrimental to a farmer or to a rancher, as far as his or her economic livelihood?
Mr. MASTERS. Well, the profits that are in agriculture, as we see them today, are very slim. And to keep adding more and more regulation just drives the cost higher and higher and we are not getting any more for the products that we are selling. So that basically is why we cannot pass those on. And we continually work—and I may go back here just a minute. Sometimes it seems like, from the Federal to the State, we are working with a moving target all the time. When we know where our target is, we are able to obtain those goals.
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Mr. LOFTIN. If I may add to that.
I raise poultry on a contract, I get paid so much a pound. If these regulations are added to me, they will not help me pay for it. It has got to be took out of what I net out of that, it is added expense. And it will not be added into our contract any way to pay for any of this.
Mr. MORAN. Well, I think those of us involved in agriculture understand that, but I am not certain that the rest of the country or my colleagues in Congress understand why this is not something that just gets ultimately passed on and somebody else pays. And I do think one of the areas that Congress needs to do a better job is oversight, reining in these Federal agencies, the way that they develop rules and regulations, the end result. I think it is important, this committee's hearing today I think establishes an awfully thorough record about the consequences of our failure to do so.
My farmers in Kansas and farmers across the country are struggling. Commodity prices are at all-time lows, independent—the cost of inputs continue to increase, fuel costs, for example. I had a message from one of my farmers on Friday that last year his farming operation spent $11,300 on fuel, this year his estimated cost is $27,700. Interest rates have increased, and the third component that I think we clearly can add, and that you have helped establish a record today, is the cost of trying to comply with rules and regulations and paperwork. And as you say, a moving target.
You get yourself—and we heard about you, Mr. Good, how it changes, you solve one problem then there is another. And our ability as farmers and ranchers to pass that cost on is so limited, we are generally price takers, and we get what the market will pay us. And whether or not we survive and whether or not we make ends meet is determined by what the costs of production are. And as those costs go up, our ability to make those ends meet disappears and we will see fewer and fewer farmers and ranchers in this country.
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So these issues are critical to us. If anyone cares about the survival of rural America, they ought to care about the cost of TMDLs and every other rule and regulation that government, at whatever level, places upon agriculture and rural communities.
It is also true of the small businesses I represent. Most of the communities I represent do not have growing populations. Economic development to us is whether or not there is a hardware store on main street. How many more hammers can the owner of that store sell when the population of the community is stable or decreasing? And yet costs keep going up every day, trying to comply with Federal rules and regulations, paperwork and taxes as well.
So thank you for your message, and we will do our best to return to Washington and make that clear. Mr. Troutz, we would be glad to feed your cattle in Kansas, and I hope we do from time to time already.
Thank you.
Mr. GOODLATTE. Thank you.
The gentleman from Texas.
Mr. TURNER. Thank you, Mr. Chairman. I just want to thank all of those who came today to be a part of this hearing. It means a lot to those of us who came to be with you to be able to hear from you. I guess you can tell, we all are united on the same side of this issue. But it was important, and is important for us to stand up, speak out and to make a record with regard to our position. And your presence here today has done that. And I want to thank the chairman for hosting the hearing here in Congressman Berry's district. I thank Marion for inviting us here. You are great people and we are going to go back to Washington with renewed dedication to try to be sure that we can accomplish the goals that we all share.
Thank you very much, Mr. Chairman.
Mr. GOODLATTE. Thank you, Mr. Turner.
Mrs. Emerson.
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Mrs. EMERSON. It is kind of a love-in, is it not? But it is important and we all feel very strongly about it.
I want to thank you Chairman and Marion for having us. And everyone, I might as well just say that I would associate myself with the comments of all of my colleagues.
You know, an old friend of mine who has passed away a couple of years, Burt Hunter from New Madrid, once said that, if you do not take care of the land, the land will not take care of you. And it is a phrase that I use in almost every single speech I make to every agriculture group or every environmentally whacko person, because they need to understand that you all cannot raise your families and you cannot pay your mortgage and you cannot be successful, if you do not take care of that on which you depend for your livelihood. And so we will go back, as my colleagues have said, and work hard to fight continually to try to get this regulation derailed, if at all possible.
I might want to suggest that if you could get the Pork Producers and the Cattlemen's Association, to get them in every single State to get every single member of the association, we might be able to come up with 20,000 letters to match that of the Forest Products Association in the next week or 10 days here, to try to perhaps get agriculture removed also from this regulation. But I think, obviously EPA, if they continue to hear from us and if we can get the national news media to listen to us, which is never an easy thing when they are on the wrong side in their minds.
But perhaps we might be successful in doing away with this and allowing you all to try to make a living with low commodity prices, over-regulation, not enough tax relief. But certainly, we need to do our best, too, to make your lives a lot easier. And that is by opening markets, as Marion said, and we are all keeping our fingers crossed that we are going to be successful on that.
But I just want to thank you for taking time. It is a farming day today and thank you for taking time out of your busy days to be here and just listen and let us learn even more from those of you who are on the land and making your living from it. Thanks.
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Mr. GOODLATTE. Thank you, Mrs. Emerson.
I want to thank all the members of this panel, and I would remind everyone here that this is an ongoing saga. You know, each one of these hearings seems to take a little bit of a different focus. We originally focused on the fact, that I think is still a fact, that the Environmental Protection Agency does not have any legal legislative authority to do what it is trying to do in the first place in this entire process, that this is a gross distortion of the Clean Water Act of 1972. We do not find the authority in that act for them to issue these new regulations. And that if, indeed, they believe that this is the correct approach, then the correct procedural approach is to come to the Congress with that proposal and seek the legislative authority to do that.
They have not done that. I think the reason is obvious. There are a great many members like those reflected on this panel whose views are simply that this is a dramatic overreach.
Then we went on to address the concern we have that the Department of Agriculture had originally been of a very different mindset about these regulations. There was an exchange which we introduced at our last hearing in Wingate, North Carolina, between the representative of the Department of Agriculture and the representative of the Environmental Protection Agency, in which it was expressed concern that if the Department of Agriculture continued to criticize the issuance of these regulations as they had, then it might become evidence in a prospective lawsuit, which I think, if these regulations were issued, you would see coming forth from a great many folks around the country challenging the EPA's authority to do this. And then, lo and behold, after that exchange, we suddenly had a change of approach on the part of the Department of Agriculture, which concerns me greatly in this matter.
Now we find that, in addition to those developments, there have been ex parte discussions with some of the interested parties in this, but not others, about how these regulations could be changed to satisfy some, but certainly would not satisfy the concerns of America's agricultural producers. And that concerns me. I think the whole thing is basically a fiasco that would be far better addressed by withdrawing these regulations from the table, going back to the drawing board, hopefully coming to the Congress. Everyone in this room is concerned about having clean water, clean water is vital to American agriculture, and we agree with that objective of the EPA. We simply very, very strongly disagree with the method that they are going about in attempting to accomplish that.
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All of that said, I would like to take note of the fact that Mr. Christensen and Mr. Hathaway have both remained throughout the entire hearing to hear the comments of both the second and third panels, and I would like to thank both of them for doing that. I think that shows some genuine interest and concern on their parts, at least individually.
I would also like to thank the director of this very fine facility, Dennis Stearnberg, for making it available to us. I understand it is brand new. It has served our purpose very, very well and we thank you very much for your help, as well as we want to extend our thanks to the Mayor of Lonoke, Linville Evans. Mr. Evans, where are you? Did he sneak out?
VOICE. We had to send him back to City Hall.
Mr. GOODLATTE. All right. Well, he also was instrumental in making this hearing possible. And I want to thank the Congressional staff on both sides of the aisle, Kevin Kramp, Dave Tenny, Ryan Flynn and Andy Johnson, for their hard work in making this hearing a success. And I want to thank Colonel Mike Anderson and Major Jim Minor of the U.S. Air Force for helping make sure that they get us here, and even more importantly, make sure they get us back in time for votes that are scheduled in Washington at 6 o'clock this evening.
Marion, would you like to say anything else, since we are on your turf? First of all, I want to thank you for having the initiative to request these hearings and hosting all of us in your district. You have some great folks here.
Mr. BERRY. Well, thank you, Mr. Chairman. We appreciate you as chairman and your leadership in bringing this hearing here and giving the good people of the First Congressional District of Arkansas the opportunity to express their opinion about this matter. And regrettably to Mr. Hathaway, where—I do not see him out there.
Mr. GOODLATTE. He is right back there.
Mr. BERRY. We are a charitable and hospitable people, Mr. Hathaway, and we regret that we have treated you otherwise. But we ask you to come back under different circumstances sometime and we will show you a different side. But we appreciate all of you being here today, and thank you very much.
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Mr. GOODLATTE. I want to thank everyone. Anybody have anything else they want to add?
[No response.]
Mr. GOODLATTE. If there is none, the chair would seek unanimous consent to allow the record of today's hearing to remain open for 10 days to receive additional material and supplementary written responses from witnesses to any question posed by a member of the panel. Without objection, it is so ordered.
And this hearing of the Subcommittee on Department Operations, Oversight, Nutrition and Forestry is adjourned.
[Whereupon, at 12:52 p.m., the subcommittee was adjourned, subject to the call of the Chair.]
[Material submitted for inclusion in the record follows:]
Testimony of William B. Hathaway
Good morning Mr. Chairman. I am William B. Hathaway, Director of the Water Quality Protection Division, U.S. Environmental Protection Agency Region 6. I appreciate the opportunity to testify before this Subcommittee on the work we are doing—in cooperation with other Federal agencies, States, and local communities—to identify polluted waters around the country and restore their health.
Since our Assistant Administrator for Water, J. Charles Fox, testified before your Subcommittee on May 22, EPA has issued a new report, ''Liquid Assets 2000, America''s Water Resources at a Turning Point. '' This report highlights the importance of clean water to the nation's economy and describes how Americans pay for dirty water. Before I discuss EPA's efforts to address the remaining threats to our nation's valuable water resources, I would like to cite some illuminating statistics from this new report.
The U.S. Economy Depends on Clean Water. In many ways, clean water is the fuel that drives our nation's economy. Recreation and tourism, agriculture, commercial fishing, manufacturing and real estate all depend heavily on clean water. The economic impact of our nation's liquid assets is profound:
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A third of all Americans visit coastal waters each year, making a total of 910 million trips, while spending about $44 billion.
Water used for irrigating crops and livestock helps American farmers produce and sell $197 billion worth of food and fiber.
Every year, the Great Lakes, Gulf of Mexico, and other coastal areas produce more than 10 billion pounds of fish and shellfish.
Manufacturers use about nine trillion gallons of fresh water every year. The soft drink manufacturing industry alone uses more than 12 billion gallons of water annually to produce products valued at almost $58 billion.
A Money magazine survey found that clean water and clean air are two of the most important factors Americans consider in choosing a place to live.
AMERICANS PAY FOR DIRTY WATER
Our economy depends on clean water; we all pay when it is polluted. Contamination of drinking water means higher health risks and increased treatment costs. Closed beaches and contaminated rivers mean lost revenue for local businesses that serve tourists, anglers, and recreationists. Swimmers at polluted beaches and lakes face possible health threats from viruses and bacteria. Each year Americans pay for dirty water:
In 1998 about one-third of the 1,062 beaches reporting to the EPA had at least one health advisory or closing.
In 1998 2,506 fish consumption advisories or bans were issued in areas where fish were too contaminated to eat.
Currently EPA estimates that at least a half-million cases of illness annually can be attributed to microbial contamination in drinking water.
The toxic microbe Pfiesteria piscicida has killed millions of fish in North Carolina since 1995 and tens of thousands of fish in Maryland in 1997. Losses to the U.S. seafood and tourism industries from Pfiesteria are estimated at $1 billion. Maryland alone suffered $43 million in canning and fishing losses in a single year. North Carolina is now spending millions of dollars for watershed restoration in an effort to control potential outbreaks in the future.
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RESTORING AMERICA'S WATERS: THE TMDL PROGRAM
The clean water programs that EPA and the States implement—ranging from financing assistance for sewage treatment facilities, to permits for dischargers, to technical assistance to control pollution from nonpoint sources—are all intended to reduce water pollution.
For many years after passage of the 1972 Clean Water Act, pollution problems were so common that any reduction in pollutants made a contribution to improving the health of waters. Today, however, some of the most obvious water pollution problems have been addressed. To restore the health of those waters that remain polluted, we need to complement existing programs with a more focused effort to identify specific polluted waters and define the specific measures needed to restore them to health.
The authors of the 1972 Clean Water Act envisioned a time when this more focused approach to restoring the remaining polluted waters would be needed and they created the TMDL program in section 303(d) of the Act. The TMDL program, as it exists today, has two key phases—identification of polluted waters and restoration of the health of these waters.
In the identification phase of the program, the States, with EPA oversight and approval, usually develop lists of polluted waterbodies—waters that do not attain the water quality standards adopted by that State—every two years. States consult with the public in developing lists, rank waters on their lists based on the severity of the pollution, and set schedules for the development of TMDLs for each water body over an 8 to 13 year period.
The second part of the program is the development of the actual ''TMDL,'' which is, in effect, a State's plan to restore the uses of the water that the State has determined to be appropriate (e.g. swimming). It includes a quantitative assessment of water quality problems and the pollutant sources that contribute to these problems. A TMDL for an impaired water defines the amount of a pollutant that can be introduced into a waterbody so that the waterbody will achieve the water quality standards adopted by that State and allocates reductions in the pollutant or pollutants among the sources in a watershed. As such, it provides a guide to taking on-the-ground actions needed to restore a waterbody.
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A TMDL can focus on a small segment of a waterbody or on a group of waters in a larger watershed. Where many polluted waters are clustered together, some States have chosen to develop a more comprehensive, watershed approach to the problem—such as a Watershed Restoration Action Strategy as described in the Clean Water Action Plan.
States develop the lists of polluted waters and the specific TMDLs, both of which must be approved by EPA. If EPA disapproves a State list or TMDL, the Clean Water Act requires EPA to establish the list or TMDL for the State.
The TMDL program was designed to provide a safety net, catching water bodies that were not protected or restored by the implementation of the range of general, broadly applicable, pollution control programs authorized in the Clean Water Act.
Until the early 1990's, however, EPA and States gave top priority to implementing these general clean water programs and gave lower priority to the more focused restoration authorities of the TMDL program. As a result, relatively few TMDLs were developed and many State lists were limited to a few waters and were not submitted in a timely manner.
Several years ago, citizen organizations began bringing legal actions against EPA seeking the listing of waters and development of TMDLs. To date, about 20 of these cases have been resolved with agreement for State actions to identify impaired waters and establish TMDLs. Where States fail to act, EPA will step in and identify the polluted waters or establish the TMDLs.
In 1996, EPA determined that there was a need for a comprehensive evaluation of the TMDL program. The Agency convened a committee under the Federal Advisory Committee Act (FACA) to make recommendations for improving program implementation, including needed changes to the TMDL regulations and guidance.
The TMDL FACA committee was composed of 20 individuals with diverse backgrounds, including agriculture, forestry, environmental advocacy, industry, and State, local, and Tribal governments. Two representatives of the USDA served as ex-officio members of the FACA.
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In July of 1998, the committee submitted to EPA its final report containing more than 100 consensus recommendations, a subset of which would require regulatory changes. Although the TMDL FACA committee did not meet agreement on all issues, the recommendations guided EPA in the development of the revisions to the TMDL regulations proposed in August of last year.
CURRENT STATUS OF THE TMDL PROGRAM
I would now like to focus on work we have done recently with a range of interested parties to discuss the important issues raised in the proposed regulations. As a result of these discussions, I am confident that we can develop a final regulation that addresses many of the suggestions we have heard while still providing for a strong, common-sense program—led by the States and local communities—to identify and restore the Nation's polluted waters.
I will also review some recent developments related to the TMDL program. For example, a Federal court in California recently confirmed the EPA's long-standing view that the Clean Water Act calls for polluted runoff from nonpoint sources to be accounted for in the identification of polluted waters and in the development of TMDLs.
Finally, Mr. Chairman, I will describe the administration's strong opposition to H.R. 4502, a bill calling for a delay of several years in finalizing revisions to the TMDL program regulations.
CONSULTATION WITH PARTIES INTERESTED IN TMDLS
Over the past several months, EPA has worked closely with many groups and organizations interested in the TMDL program and in the proposed revisions to the current TMDL regulations. We have also made a special effort to review the many public comments we received on the proposed regulations.
Consultation with States. The Clean Water Act provides that States have the lead in the identifying polluted waters and developing TMDLs.
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It is critical that States stay in this leadership role and that they are partners in developing and implementing the program for restoring polluted waters described in our final regulations.
In developing the proposed revisions to the TMDL regulations, we worked closely with State officials, including a group set up by the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) and the Environmental Council of the States (ECOS). In addition, four senior State officials were members of the Federal Advisory Committee on the TMDL program.
Consultation with the U.S. Department of Agriculture. For the past several years, EPA and the United States Department of Agriculture (USDA) have worked in close cooperation to design and implement programs to protect water quality.
EPA and USDA: worked with other Federal agencies in developing the Clean Water Action Plan several years ago; developed the EPA/USDA Unified National Strategy for Animal Feeding Operations issued last year; and, worked with other agencies to draft the Unified Federal Policy for management of water quality on Federal lands on a watershed basis proposed earlier this year.
When the proposed TMDL rule was published last August, concerns were raised in comments by the USDA. In response to these concerns, J. Charles Fox met with Under Secretary for Natural Resources and the Environment, James Lyons, and they established a joint EPA/USDA workgroup to review concerns of USDA with the TMDL proposal.
The USDA/EPA workgroup met on a regular basis for three months and these meetings involved several dozen staff from different parts of both agencies. These intensive discussions have helped both agencies think through how our programs can best be coordinated.
EPA and USDA released a Joint Statement describing areas of agreement on the TMDL rule. Some of the key elements of this Joint Statement describe changes EPA expects to include in the final TMDL rule on topics of interest to the USDA.
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For example, the Joint Statement outlines how EPA and USDA proposed, at the time of the agreement, to address the problem of restoring polluted waters that are impaired as a result of forestry operations. The USDA/EPA forestry proposal is discussed in more detail later in my testimony. And, as I will explain there, EPA has decided not to include forestry provisions in the TMDL regulations to be finalized this summer. Instead, we expect that the Agency will repropose the forestry provisions separately this fall along the lines described in the USDA/EPA Joint Statement.
In addition, the Joint Statement addresses the treatment of diffuse runoff in our August TMDL proposal. EPA remains committed to voluntary and financial incentive approaches to reduce runoff from diffuse sources of pollution where there is reasonable assurance that these controls will be implemented. The proposed rule would not require Clean Water Act permits for runoff from these sources.
The President's fiscal year 2001 budget backs up this commitment to voluntary and incentive-based programs with proposals that EPA grants to States for polluted runoff programs be increased from $200 to $250 million, and that funding for conservation assistance programs at the U.S. Department of Agriculture be increased by $1.2 billion. The benefits that result from these and other assistance programs will be given due credit in the TMDL process.
Because the majority of polluted waters are polluted in whole or in part by runoff from diffuse sources, a management framework that does not address them cannot succeed in meeting our clean water goals. As I discuss in more detail later in this testimony, this view was recently endorsed by a Federal court in California.
Review of Comments on the Proposed Regulations. I want to assure the Subcommittee that EPA has fully, and carefully, reviewed the public comments on the proposed regulations.
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The Agency received over 34,000 comments on the proposed TMDL regulation. The comments fall into three general groups:
We received some 30,546 postcards addressing control of water pollution from forestry operations. Many of these comments are virtually identical.
We received 2,747comments from diverse individuals and organizations expressing a view on one or two elements of the proposal.
We received 781 comments from groups or individuals expressing comments on multiple parts of the proposal.
We view each and every comment as important. In anticipation of extensive comment, EPA began working to organize and evaluate comments received even before the close of the comment period. Since the comment period closed, we reassigned staff as needed to review and summarize comments.
This is an important effort begun over three years ago with the convening of a Federal Advisory Committee. EPA has made every effort to assure a full and careful review of public comments. If anything, the high level of interest in the regulation has given us an extra measure of determination to assure that the final TMDL rule is based on a careful consideration.
EXPECTED CHANGES TO PROPOSED TMDL REGULATIONS
I want to outline our current thoughts on how to change the proposed revisions to the TMDL regulations and proceed with the important work of restoring America's polluted waters.
Delivering the Promise of the 1972 Clean Water Act. The final rule will provide a common-sense, cost-effective framework for making decisions on how to restore polluted waters. EPA expects that the final rule will:
Tell the Full Story—provide for a comprehensive listing of all the Nation's polluted waters;
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Meet Clean Water Goals—identify pollution reduction needed to meet the clean water goals established by States in water quality standards;
Encourage Cost-Effective Clean-Up—assure that all sources of pollution to a waterbody are considered in the development of plans to restore the waterbody;
Rely on Local Communities—foster local level, community involvement in making decisions about how best to meet clean water goals;
Foster On-the-Ground Action—call for an implementation plan that identifies specific pollution controls for the waterbody that will attain clean water goals;
Commit to Environmental Results—require a ''reasonable assurance'' that the needed pollution reductions will be implemented; and
Assure a Strong Program Nationwide—EPA will establish lists of polluted waters and TMDLs where a State fails to do so.
Enhancing State Flexibility in Managing Polluted Waters. States will have the lead to identify and clean up polluted waters through the TMDL program. The final regulation will expand the flexibility that States have to tailor programs to the specific needs and conditions that they face. EPA expects that the final rule will:
Give States More Time—allow States 4 years to develop lists of polluted waters, rather than 2 years as under current regulations;
Give States More Time—allow States to develop TMDLs over a period of up to 15 years, rather the 8–13 year timeframe of the current program;
Tailor to Local Conditions —tailor implementation plan requirements and add flexibility to account for different types of sources causing the water quality problem; and
Endorse Voluntary Programs—give full credit to voluntary or incentive-based programs for reducing polluted runoff through diverse control measures, including best management practices (BMPs).
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Streamlining the Regulatory Framework . In response to comments from many interested parties, the final rule will be streamlined and focused on what is needed for effective TMDL programs. EPA expects that the final rule will:
Drop Threatened Waters—drop the requirement that polluted water lists include ''threatened'' waters expected to become polluted in the future;
Allow More Flexibility in Setting Priorities—drop the proposed requirement that States give top priority to addressing polluted waters that are a source of drinking water or that support endangered species;
Drop Petition Process—drop the proposal to provide a public petition process for review of lists of impaired waters or TMDL program implementation;
Drop Requirements for Offsets of New Pollution—drop proposals to require offsets before new pollution can be discharged to polluted waters prior to the development of a TMDL; and
Phase-In Implementation—new requirements for polluted waters lists become effective in 2002 and new requirements for TMDLs will be phased in over an 18 month period.
Provisions Relating to Forestry. As you know, EPA has received extensive comments on our proposed changes to the TMDL regulations, and we are making substantial improvements to the regulations as a result of these comments.
The one issue that we received the most comments on concerned our initial proposal for addressing water pollution problems caused by forestry operations. In response to these concerns, EPA worked closely with the USDA to develop an alternative approach to reducing water pollution from forest operations. EPA agrees with the USDA and many in the forest industry that careful forest management can have diverse benefits to water quality in a watershed. The revised approach described in the Joint Statement of the USDA and the EPA gives States the lead role in forest water quality and encourages the development of strong State forest water quality programs.
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Although the revised approach described in the USDA/EPA Joint Statement is a significant improvement over the original proposal from last August, EPA believes that there is a need to describe this approach to the wide range of interested parties, to discuss how this approach would work, and to get ideas for improvements. For example, many observers have questioned the provision of the USDA/EPA proposal that would exempt lands managed by the U.S. Forest Service.
In response to the interest in additional discussion of forest water quality issues, J. Charles Fox, EPA's Assistant Administrator for Water, announced in a letter of June 8 that EPA will not include forestry provisions in the TMDL regulations to be finalized this summer. Instead, we expect that the Agency will repropose provisions relating to forestry later this fall along the lines described in the USDA/EPA Joint Statement. We intend to engage stakeholders extensively in reviewing the forestry provisions prior to the reproposal this fall. Based on the comments received on the reproposed rule, the Agency will decide sometime next year how best to proceed to address this important issue.
IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS
I want to briefly review some recent, important developments related to the TMDL program.
Reducing Workload and Assuring Adequate Resources . State officials have expressed concern over the workload and costs of the TMDL program. EPA is making every effort to respond to this concern. Last month, EPA issued a regulation eliminating the requirement that States submit lists of polluted waters this year; new lists will not be due until 2002. The decision to eliminate the 2000 listing process has saved States and others hours of work and has allowed us all to concentrate on the important job of developing TMDLs for the over 20,000 waterbodies already identified as polluted.
States are also concerned about the costs of administering the TMDL program. The annual appropriation available to States to administer and directly implement TMDLs and the clean water program has steadily increased from $131 million in 1993 to a proposed $410 million in the administration's proposed fiscal year 2001 budget.
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The President's fiscal year 2001 budget increases State grant funding for TMDLs by $45 million in fiscal year 2001 alone. When States match this new funding, about $70 million in new funding will be available for implementing the TMDL program.
In addition, EPA has provided States with the discretion to use up to 20 percent of funding under section 319 to develop TMDLs and for related work. The President's request for 319 funding in fiscal year 2001 is $250 million and thus provides up to $50 million in additional TMDL funding.
And, EPA expects that the final rule will support more cost-effective development of TMDLs by specifically encouraging States to develop TMDLs for groups of polluted waterbodies on a watershed scale.
EPA has worked with States to develop detailed assessments of the costs of key elements of the clean water program. Based on this analysis, and in consultation with the Office of Management and Budget, EPA projects that the funding proposed in the President's budget would be sufficient for States to administer the TMDL program in 2001 under the final TMDL regulations expected to be promulgated this summer.
Garcia River Decision. A Federal court in California, reviewing a challenge to a TMDL developed for the Garcia River, concluded last month that the Clean Water Act authorizes EPA to establish TMDLs for waters ''polluted only by logging and agricultural runoff and/or other nonpoint sources rather than by any municipal sewer and/or industrial point sources.''
The court noted that the Supreme Court has consistently referred to the Clean Water Act as establishing a ''comprehensive and all-compassing'' program of water pollution regulation. The court found that the logic of section 303(d) required that listing and TMDLs were required for all impaired waters, and concluded that excluding nonpoint source impaired waters would have left a ''chasm'' in the statute. And, the judge found that Congress' passage of section 319 in 1987 was consistent with the view that section 303(d) covered nonpoint sources of pollution because TMDLs were needed for the planning required under section 319.
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This decision confirms EPA's long-standing interpretation of the Act. It also makes clear that the requirement to list waters polluted by diffuse or nonpoint sources, and develop TMDLs for these waters, is based on the Clean Water Act rather than the existing or proposed TMDL regulation.
GAO Report on Water Quality Monitoring. Also in March, the General Accounting Office released a report critical of data used by States and EPA to make water quality decisions.
EPA has responded to the report in detail, agreeing with some conclusions and disagreeing with others.
EPA agrees with the GAO conclusion that some States lack the data that they need to fully assess the water pollution problems in their State. In many States, the lack of an extensive, and expensive, monitoring network prevents the State from evaluating all waters on a regular basis. Given limited resources, however, knowledgeable State managers focus monitoring resources on the most likely problem areas. The GAO report recognizes this approach and reports ''State officials we interviewed said they feel confident that they have identified most of their serious water quality problems.''
The GAO report suggests that the polluted waters identified from this monitoring may not be all of the polluted waters in the State. It does not indicate that the polluted waters that are identified as polluted are improperly identified as polluted. In other words, the TMDL program may not be focused on enough waters, but it is not focused on the wrong waters. In addition, if a waterbody is listed as polluted by mistake, it can be removed from the list.
Some observers have incorrectly concluded that the report found that States do not have the data that they need to develop TMDLs. There are several problems with this conclusion.
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First, GAO generally found that States do have the data they need to develop TMDLs for point sources.
Second, while most States now lack detailed data to develop a TMDL for waters polluted by nonpoint sources, the development of these site-specific data has not been a priority of State monitoring programs. EPA and States recognize and expect that, once the process of developing a TMDL is begun, sometimes, several years later, States will need to supplement the initial screening data used to identify the problem with more detailed assessments needed to develop a TMDL. The lack of these data today is not a reason to delay a TMDL.
Third, GAO concludes that the lack of detailed nonpoint source related data makes it ''difficult to directly measure pollutant contributions from individual nonpoint sources and, therefore, assign specific loadings to sources in order to develop TMDLs.'' This would be a concern if EPA's existing or proposed TMDL regulations required that States have data to assign specific loadings to individual sources, but they do not. Rather, EPA's proposed regulation specifically provided that allocations to nonpoint sources may include ''gross allotments'' to ''categories or subcategories of sources'' where more detailed allocations are not possible.
Atlas of America's Polluted Waters. States submitted lists of polluted waters in 1998. Over 20,000 waterbodies across the country are identified as not meeting water quality standards. These waterbodies include over 300,000 river and shore miles and 5 million lake acres. The overwhelming majority of Americans—218 million—live within 10 miles of a polluted waterbody.
A key feature of the 1998 lists of polluted waters is that, for the first time, all States provided computer-based ''geo-referencing'' data that allow consistent mapping of these polluted waters. In order to better illustrate the extent and seriousness of water pollution problems around the country, EPA prepared, in April of this year, an atlas of State maps that identify the polluted waters in each State. The maps are color coded to indicate the type of pollutant causing the pollution problem. And, bar charts show the types of pollutants impairing stream/river/coastal miles and lake/estuary/wetland acres.
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Economic Analysis. Several Members of Congress have suggested that EPA did not conduct an adequate assessment of the cost of the TMDL regulation. As you know, Mr. Chairman, cost assessments of proposed regulations are strictly governed by statute and by Executive Order.
In compliance with these requirements, EPA described the incremental costs of the proposed regulation. We did this work carefully and fully, in compliance with applicable guidelines. EPA is working with States and others to define the overall costs of administering the TMDL program, including both the base program costs and the incremental costs of the new regulations. EPA is committed to providing an estimate of these costs prior to promulgation of the final TMDL regulations.
Many commenters on the proposed revisions to the TMDL regulations indicated an interest in EPA's estimate of the overall costs of implementing the TMDL program and restoring the Nation's polluted waters.
It is important to note that several provisions of the Clean Water Act call for attainment of water quality standards adopted by States. Notably, section 301(b)(1)(C) of the Act requires that all discharge permits include limits as necessary to meet water quality standards. The TMDL process does not drive the commitment to meet water quality standards. Rather, it provides a comprehensive framework for identifying problem areas and allocating pollution reductions necessary to fix problems among a wider range of pollution sources (i.e. not just point sources).
EPA recognizes that the TMDL process imposes some administrative costs for States, communities and pollution sources. We believe, however, that these administrative costs could be largely offset by the significant savings to be achieved over the next decade as a result of the TMDL process. By bringing all sources of pollution in a watershed together, the local community and the State can work together to evaluate various approaches to achieving needed pollution reductions. For example, the cost to remove a pound of a given pollutant may be high for some sources and low for others.
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The TMDL process lays out these considerations and lets the local community decide how to meet its clean water goals. EPA expects many communities to opt for cost-effective approaches, many of which rely on low cost controls over nonpoint sources.
Under the final revisions to the TMDL rules to be published this summer, opportunities for shifting pollution control responsibility from high cost point source controls to lower cost controls over nonpoint sources will be greatly enhanced. Under the new rules, States and EPA will be able to defend point source permits that alone will not result in attainment of water quality standards because the TMDL must provide a ''reasonable assurance'' of implementation of other needed pollution reductions.
Under the TMDL rules in effect today, ''reasonable assurance'' is not a necessary element of a TMDL and cost effective sharing of pollution reductions is much less likely. As I have testified, ''reasonable assurance'' of implementation can be established based on voluntary and incentive-based programs.
EPA is developing rough estimates of the costs of attaining clean water goals using the TMDL model and not using the TMDL model (i.e. relying on point source controls only to meet water quality standards) and will make this estimate available in conjunction with promulgation of the TMDL regulation.
OPPOSITION TO H.R. 4502
Mr. Chairman, the administration strongly opposes H.R. 4502 because it would delay final TMDL regulations by at least three years, and perhaps much longer.
Provisions of H.R. 4502 call for a study of the scientific basis for the TMDL program. While there are technical issues associated with the development of TMDLs, many of the essential scientific bases for developing TMDLs and restoring polluted waters are already available. There is no need for a review of this science by the National Academy of Sciences. In addition, other objectives of the study, such as assessments of total costs of meeting water quality standards, are questions that the National Academy of Sciences is not best suited to answer.
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Finally, section 4 of H.R. 4502 would prevent the finalization of TMDL regulations until the completion of the study by the National Academy of Sciences. The administration is strongly opposed to this provision of the bill.
Enactment of this proposal could result in the effective shut-down of the TMDL program in many States as they and other parties defer work on TMDLs until the comprehensive studies mandated by Congress are completed. Sadly, Congress would be telling thousands of communities across the country that are eager to get to work restoring the over 20,000 polluted waters to stand down—to pack up their clean water plans and put them into the deep-freeze for the foreseeable future while a panel of scientists meets here in Washington, behind closed doors, for almost two years, to write a report.
Many States have strong public confidence in their TMDL programs and expect to work cooperatively with the public in listing polluted waters and developing TMDLs. State efforts to meet commitments to the public to run effective TMDL programs would be hampered because many affected pollution sources could cite the Congressionally-mandated national study as a reason to delay any action on TMDLs before release of the study and subsequent revision of the rules. Public confidence in the TMDL process could be seriously eroded.
Citizens may step-up efforts to seek court orders to complete lists of polluted waters and TMDLs. Without final regulations to guide EPA and State efforts to implement the TMDL program, courts could issue detailed judicial guidance for the TMDL program.
I hope, Mr. Chairman, that I can convince you and other Members of Congress that we do not need to postpone any longer these important improvements to the TMDL program. We have a solid legislative foundation in the Clean Water Act. We have a good TMDL program that will be even better with the revisions to the program regulations that we will finalize this summer. Most importantly, people all over the country want to get to work restoring polluted rivers, lakes, and coastal waters, and they want to start now.
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The 1972 Clean Water Act set the ambitious—some thought impossible—national goal of ''fishable and swimmable'' waters for all Americans. At the turn of the new millennium, we are closer than ever to that goal. Today, we are able to list, and put on a map, each of the 20,000 polluted waters in the country. And, we have a process in place to define the specific steps to restore the health of these polluted waters and to meet our clean water goals within the foreseeable future.
It is critical that we, as a Nation, rededicate ourselves to attaining the Clean Water Act goals that have inspired us for the past 25 years. The final revisions to the TMDL regulations will draw on the core authorities of the Clean Water Act, and refine and strengthen the existing programs for identifying and restoring polluted waters.
Mr. Chairman, I consistently hear from critics of the TMDL program that it is more of the old, top-down, command-and-control, one-size-fits-all approach to environmental protection. In fact, the TMDL program offers a vision of a dramatically new approach to clean water programs.
This new approach focuses attention on pollution sources in proven problem areas, rather than all sources. It is managed by the States rather than EPA. It is designed to attain the water quality goals that the States set, and to use measures that are tailored to fit each specific waterbody, rather than imposing a nationally-applicable requirement. And, it identifies needed pollution reductions based on input from the grassroots, waterbody level, rather than with a single, national, regulatory answer. In sum, we think we are on the right track to restoring the Nation's polluted waters.
The final revisions to the existing TMDL regulations will support and improve the existing TMDL program and they will be responsive to many of the comments we have heard from interested parties.
Thank you, for this opportunity to testify on EPA's efforts, in cooperation with States and other Federal agencies such as the Department of Agriculture, to restore the Nation's polluted waters. I will be happy to answer any questions.
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Statement of Jerry Masters
Arkansas Pork Producers Association (APPA) respectively submits the attached comments on the proposed revisions concerning establishment of Total Maximum Daily Loads (TMDLs) under the Clean Water Act (CWA) (40 C.F.R. Part 130).
The APPA represents approximately 1,200 pork producers across the State of Arkansas. The economic impact of the pork industry on rural America is significant. Farm receipts from hogs place the industry in fourth among all farm commodities. Furthermore, annual farm sales exceed $10 billion, while the retail value of pork sold to consumers exceeds $30 billion.
As a result, pork production continues to create jobs and economic opportunity for thousands of rural communities across the United States. The pork industry is responsible for over $64 billion in total domestic economic activity based on a 1995 study by researchers at Iowa State University. Through direct and indirect ways, the pork industry supports 600,201 jobs and adds over $27 billion of value to production inputs. The pork industry in the past and present is a major contributor to local, State and national economies and governments.
In addition, the global market offers tremendous growth potential for U.S. pork producers. Pork is the world's ''meat of choice,'' with approximately 43 percent share of the world's meat protein market. The U.S. pork industry is steadily increasing its market share of this vast world market, exporting over 6.5 percent of its production in 1998 after becoming a net exporter in 1995 for the first time since 1952. The National Pork Producers Council ''Pork. The Other White Meat'' promotion is well known. Funded by the national pork checkoff and paid for by producers, it is credited with having a major impact in improving pork's consumer image and helping improve pork demand. The checkoff also funds important research and education projects to improve pork's nutritional and environmental profile, overall quality and price.
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In conclusion, after careful review of EPA's proposed regulations, current law and the final FACA Committee recommendations, the APPA has serious concerns that the TMDL requirements have the potential of negatively impacting the pork industry. Therefore, these comments are intended to provide additional insight on these concerns and there effect on the industry. I thank you for your time and consideration.
COMMENTS ON PROPOSED TMDL REGULATIONS JUNE 16, 2000
On August 23, 1999, EPA proposed sweeping changes to the current regulatory requirements for establishing TMDLs under the CWA so as to clarify and strengthen this program to assure that water quality standards are attained and maintained. Section ()303(d) of the CWA requires States, Territories and authorized Tribes (collectively ''States'' hereafter) to identify and establish a priority ranking for waters for which existing pollution controls are not stringent enough to attain and maintain State water quality standards, establish TMDLs for those waters, and submit, from time to time, the list of waters and TMDLs to EPA. EPA must review and approve or disapprove within 30 days of the time they are submitted. If EPA disapproves a list or a TMDL, EPA must establish the list or TMDL for the State.
EPA issued regulations governing identification of impaired waters and establishment of TMDLs, at 40 CFR 130.7, in 1985 and revised them in 1992. The current regulations provide that:
State lists must include those waters for which more stringent effluent limitations or other pollution controls required by local, State, or Federal authority are not stringent enough to attain and maintain applicable water quality standards;
State lists must be submitted to EPA every two years, on April 1 of every even-numbered year;
The priority ranking for listed waters must include an identification of the pollutant or pollutants causing or expected to cause the impairment and an identification of the water bodies targeted for TMDL development in the next 2 years;
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States, in developing lists, must assemble and evaluate all existing and readily available water quality-related data and information;
States must submit, with each list, the methodology used to develop the list and provide EPA with a rationale for any decision not to use any existing and readily available water quality-related data and information; and
TMDLs must be established at levels necessary to implement applicable water quality standards with seasonal variations and a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.
In November 1996, EPA established a Federal Advisory Committee Act Committee (FACA Committee) to provide recommendations on improving regulations and guidance for identifying impaired water bodies and establishing TMDLs. EPA asked the FACA Committee to provide advice on new policy and regulatory directions for TMDLs, including their role in watershed protection, the identification of impaired and threatened water bodies, the pace of TMDL establishment, the science and tools, needed to support the establishment of TMDLs, and the roles and responsibilities of States and EPA in establishing TMDLs. A member of NPPC served on the FACA Committee. The FACA Committee completed its deliberations in May 1998 and submitted its final report to EPA on July 28, 1998. The FACA Committee's final report includes over 160 recommendations for improving government efforts to identify impaired waters and establish TMDLs. Many issues that were addressed, however, were too controversial or intractable for the FACA Committee to come to consensus on; these are identified in the final committee report as well.
Having reviewed EPA's proposed regulation, current law and the final FACA Committee recommendations, we have serious concerns over many issues. We believe that Congress designed the TMDL program in 303(d) to focus on impaired waters only, as an means to calculate acceptable pollutant loads to assist State efforts to effectively regulate point source industrial activities, and to provide States as much flexibility as needed to achieve these water quality goals. Congress took an entirely different approach in 319 to reduce the effects of nonpoint source (NPS) runoff from agricultural and other land use activities. We strongly believe that Congress did not intend the TMDL program to become the overarching mechanism for EPA or States to regulate all of U.S. citizens' land use activities. Many of the provisions of the proposed TMDL rule would greatly exceed the statutory authorities of current law if applied to agriculture, generate much unnecessary controversy and confusion, and actually undermine successful Federal and State NPS water quality programs. EPA also has misjudged key determinants, such as the likely costs to State and Federal agencies and the private sector and the likely impacts of the proposed changes.
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In addition, EPA makes frequent reference to the recommendations of the committee chartered by the Agency under the Federal Advisory Committee Act (FACA Committee) to evaluate the TMDL program. The Agency continually cites the Committee's report as the foundation for these rule revisions. We find this reliance on the FACA Committee to be a misrepresentation and insincere. EPA's use of the FACA Committee's report has been selective and biased in favor of the most expansive role for the TMDL program and the maximum amount of Federal control. See TMDL Federal Advisory Committee Report, May 20, 1998.
American agricultural interests were well represented on the FACA. The livestock, food and fiber segments of agriculture all participated through direct involvement, letters and meetings with the EPA, in the FACA process. In fact, NPPC provided many comments to the FACA members and to EPA over the past two years, prior to the publishing of the proposed TMDL regulations. The fact is that the FACA Committee was unable to reach consensus. The Committee did not make recommendations on many of the more controversial questions that it considered, such as whether threatened waters, ''expected-to-meet'' waters, or waters impaired by nonpoint sources or air deposition should be included on —303(d) lists, as well as whether implementation plans may be required under—303(c) or only under 303(e) (i.e., whether EPA has the authority to approve/disapprove and re-write State implementation plans). With respect to each of these issues, EPA has taken the more aggressive approach, always opting to address each problem through the TMDL program and to maximize Federal control over State TMDL programs and implementation activities. The preamble provides little evidence that EPA ever considered why these more aggressive approaches were not offered as Committee recommendations, or the views of the Committee members who opposed such approaches.
EPA also disregarded recommendations of the FACA Committee, particularly where those recommendations would exclude waters from the TMDL program, such as the Committee's recommendation that there be a procedure for delisting waters between listing cycles where appropriate based on new information. Even where EPA finds consistency between its specific proposals and the FACA Committee's recommendations, it cannot—as it appears to—rely on those recommendations as adequate legal authority for those proposals. The FACA Committee was charged with making policy recommendations—not legal judgments; indeed, the Committee's report expressly acknowledged disagreement within the Committee as to whether EPA possesses legal authority to undertake some of the Committee's recommendations. FACA Report at 8.
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2.0 Major Concerns
2.1 Lack of Statutory Authority to Regulate NPS
One of the most disturbing aspects of EPA's proposed rule is the Agency's conversion of the once modest TMDL program into an overarching, nationwide enforcement mechanism for all sources of pollution—point and nonpoint sources. It was not the intent of Congress that TMDLs should apply to NPS runoff. Instead, the TMDL program was designed by Congress as a tool for establishing effective water quality-based effluent limitations for NPDES permit holders.
EPA clearly lacks the statutory authority to include nonpoint source-impaired waters under revised TMDL regulations. Rather, the centerpiece of the original 1972 Act was the 402 NPDES permit program, which set up a classic ''command and control'' regulatory program designed to gradually reduce pollutants from point source discharges into the Nation's waters. 33 U.S.C. 1342. CWA section 301 makes clear that the ''discharge'' of any pollutant from a point source into the waters of the United States must be in compliance with technology and water quality based standards and effluent limitations. Id. 1311.
There can be no doubt that CWA 303(d)(1)(A) only covers waters impaired by point sources. It requires States to list all waters ''for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B)'are not stringent enough to implement any water quality standard applicable to such waters.'' 33 U.S.C. 1313(d)(1)(A). CWA 502(11) defines ''effluent limitation'' as restrictions on discharges ''from point sources.'' Id. 1362(11). Furthermore, the cited sections 301(b)(1)(A) and (B) refer to preparation of technology-based effluent limitations for point sources. Section 303(d) speaks five times of point source effluent limitations. Section 303(d)(4) limits the extent to which an effluent limitation based on ''a total maximum daily load or other waste load allocation established under this section'' may be revised. Id. 1313(d)(4)(A). This linkage of TMDLs to waste load allocations is repeated three times in CWA section 303(d)(4).
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Nevertheless, EPA has adopted the position in its policies—and now in its proposed TMDL regulations—that section 303(d)(1) requires the listing and development of TMDLs for all pollutant-impaired or threatened waters, including those impaired or threatened only by nonpoint source pollutants. We are convinced that this is totally inappropriate. Indeed, the Federal Advisory Committee Act (FACA) Committee concluded ''that there are legal issues . . . as to whether waters impacted only by nonpoint sources are to be listed under 303(d)(1)(A), 303(d)(3) or only under 319.'' FACA Report, 42 (1998).
It is extremely significant that 303 contains no reference whatsoever to ''runoff'' or to ''nonpoint sources,'' and neither the phrase ''nonpoint source discharge'' nor the phrase ''discharge from a nonpoint source'' appears anywhere in the CWA. By contrast, ''runoff'' describes stormwater flowing from nonpoint sources explicitly excluded from 303 of the CWA. If Congress had meant for all pollution sources to be covered under 303, there would have been no need for the 1987 amendments that added 319.
EPA weakly attempts to justify its requirement that states include waters impaired or threatened solely by nonpoint sources: ''While it is true that the effluent limitations required by section 301 apply only to point sources, this fact does not necessarily restrict the scope of section 303(d) to point source-only water bodies.'' ''there is no express exclusion of nonpoint source impacted water bodies from the statute's requirements.'' ''Nowhere does the section say that nonpoint source impacted water bodies need not be listed.'' (Preamble at 23) (Emphasis added).
However, this is a totally inappropriate justification. Congress examined in 1987 and again in 1995 the legislative process by which NPS is controlled under the CWA. Testimony was collected on the extent of NPS impacts on water quality and the possible legislative solutions available. (Congress carefully chose to establish in 1987, and later strengthen, the 319 program rather than sweep NPS into the TMDL program.) The U.S. Supreme Court has made it clear that ''Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio [with silence] to enact statutory language that it has earlier discarded.'' (INS v. Cardozo-Fonseca 480 U.S. 421, 442–43 1987). EPA cannot derive the authority to include NPS control in the TMDL program simply because Congress did not explicitly deny them the authority to do so. There is extensive legislative history to demonstrate Congress' intent.
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This proposed new policy will unnecessarily trigger significant public controversy and destroy countless partnerships nationwide that have been forged to address water quality. EPA should modify the proposed rule to simply ''attribute'' pollutant loads to background and nonpoint sources. To the extent that EPA's final regulation goes beyond our interpretation of statutory authority, it should clearly provide that State implementation mechanisms include Environmental Quality Incentives Program (EQIP) contracts, 319 program cost-share agreements, memoranda of agreement (MOA), site-specific and watershed-specific voluntary actions, stakeholder source water partnerships, and voluntary compliance audits for proper implementation of BMPs.
As part of the proposed requirement to include NPS in State 303(d)(1)(A) lists, EPA would require States to list and develop TMDLs for water bodies impaired or threatened by nonpoint source pollutant(s) that enter the waterbody through aerial deposition. Proposed 130.25. The science of ''wet'' deposition (pollutants dissolved in rainfall) is relatively straightforward and documented, but the science of pollutant deposition via ''dry'' deposition is still emerging. Complicating these considerations is the likely political tension created by Clean Air Act requirements and possible international air quality issues. Quantitatively incorporating these impacts into TMDL calculations is not feasible, and such a requirement would place an overwhelming burden on States. As such, pollutants from atmospheric deposition are not ''suitable'' for TMDL calculation, for the proper technical conditions for measurement and TMDL calculation are not known. (see CWA 304(a)(2)(D), 33 U.S.C. 1314(a)(2)(D)).
Instead, States should simply consider the presence of atmospheric deposition along with background pollutants in their calculations of improvements likely to be achievable through source reductions triggered by TMDLs. EPA should revise the proposed rule to eliminate the requirement that States list and develop TMDLs for water threatened or impaired by atmospheric deposition of pollutants.
2.2 Lack of Statutory Authority to Extend TMDLs to ''Threatened'' Waters
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EPA proposes to add listing and TMDL development requirements for ''threatened waters,'' inappropriately extending the TMDL program from ''impaired'' waters to include waters that currently meet all water quality standards. More than just expand State water quality programs and budgets, such an alteration would unnecessarily and improperly trigger regulatory actions for waters that are not impaired and for which EPA has no authority to regulate. Clearly this would be a departure from what is legally correct.
EPA defined threatened waters as ''Any waterbody of the United States that currently attains water quality standards, but for which existing and readily available data and information on adverse declining trends indicate that water quality standards will likely be exceeded by the time the next list of impaired or threatened water bodies is required to be submitted to EPA.'' (Emphasis added). Proposed 130.2(n).
Water bodies threatened by one or more point- or nonpoint-source pollutants or by an unknown cause would be included in requirements for TMDL development and antidegradation restrictions on NPDES permits prior to removal from the ''threatened'' list. The Federal Advisory Committee Act (FACA) Committee, which the EPA established, recommended that those waters be put on a special list. The EPA has chosen not to implement the recommendation and would require threatened waters be included on the impaired water list.
As important as it is to protect water bodies that are on the verge of becoming impaired, there are several reasons why the method EPA has chosen is improper:
Congress expressly authorized EPA to require States to list and prepare TMDLs only for impaired waters; there is no statutory authority to require ''threatened'' waters to be included. 303(d). By definition, ''threatened'' waters currently meet all applicable water quality standards. As such, EPA has no authority to require States to list and develop TMDLs for them, let alone require the implementation of the TMDLs.
1Once on the list, ''threatened'' waters would be subjected to regulatory limitations, seriously affecting the operations of nearby landowners and businesses—even though the waters are meeting all water quality standards. In effect, the ''threatened'' status would inflict a public affairs and legal stigma upon the water body, which could have significant adverse financial, legal and social impacts.
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EPA proposes that the criteria for determining a ''threatened'' waterbody is ''existing and readily available data'' based on ''adverse declining trends'' Proposed 130.2(n). Without adequate controls on the quality of the data, ''threatened'' determinations could easily become arbitrary and capricious as EPA and States evaluate existing and projected trends. Since EPA retains the authority to reject or modify all State lists, EPA could override situations where States more fully understand the local ecological and socioeconomic trends.
The proposed rule would require TMDLs for all ''threatened'' waters on Part 1 of the State list. Proposed 130.27. This would significantly expand State TMDL burdens and could divert important resources away from restoration of truly impaired waters.
EPA proposes that an expedited TMDL would be required (EPA suggests within five years) if the waterbody identified as ''threatened'' is a drinking water source or habitat for endangered or threatened species. However, it is entirely likely that such an expedited TMDL could become a waste of time and money should, in the same period of time, additional monitoring and assessment proves the waterbody actually is not ''threatened.''
Once on the list, ''threatened'' waters must remain on the list until no longer ''threatened.'' However, EPA has not proposed a mechanism for States to submit delisting petitions to EPA between listing cycles, and has not defined the evidence States would need to convince EPA that a waterbody is not, or no longer, ''threatened.''
For the above reasons, States should not be required to list or develop TMDLs for ''threatened'' water bodies. Instead, EPA should modify its TMDL proposed rule to require States to monitor at an accelerated pace those water bodies determined to be ''threatened.'' A similar mechanism was established by Congress in 1987 for dealing with water bodies ''threatened'' by NPS runoff. Section 319 requires that States identify ''those navigable waters within the State which, without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain applicable water quality standards'' 33 U.S.C. 1329(a)(1)(A). States must adopt NPS management programs which identify the BMPs that will be undertaken to reduce pollutant loadings from nonpoint sources. 33 U.S.C. 1329(b)(2)(A). The programs must identify ''as appropriate, nonregulatory or regulatory programs—to achieve implementation'' of those BMPs. Id. 1329(b)(2)(B). All States have implemented EPA-approved 319 programs. States should not be required to list or develop TMDLs for ''threatened'' water bodies. EPA should modify its TMDL proposed rule to require States to monitor at an accelerated pace those water bodies determined to be ''threatened.''
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2.3 Listing Waters Based on ''Evaluated'' Data
EPA defines evaluated data and information as a justified replacement for monitored data (64 Fed. Reg. at 46,018) in State 303(d) listing and TDML development. This is unfortunate, for evaluated information is too often ''drive-by surveys,'' where notation of historic land uses, location of neighboring farms, adjacent agribusiness buildings or homeowner activities is viewed as ''predictive models'' to facilitate a more timely and less expensive water quality assessment.
Evaluated information is simply anecdotal information. It is not the basis for identifying a violation of numeric water quality standards and designated uses. The stakes are too high for landowners and businesses for States to make 303(d) decisions on less than hard data demonstrating a failure to meet standards. EPA should revise its proposed TMDL regulation concerning data considered by States in listing decisions to require consideration of ''all existing, readily available, reliable and credible data and information,'' rather than simply ''all existing and readily available data and information.'' Proposed 130.22(a). This is consistent with EPA's stated intention to ensure the use of ''reliable and credible data and information.'' 64 Fed. Reg. at 46,019.
EPA should specify minimum quality assurance requirements for all data used in listing decisions, and should require that water bodies not be listed unless data and information clearly demonstrate nonattainment of water quality standards.
2.4 Listing Waters ''Impaired by Unknown Causes''
EPA proposes to require States to list water bodies impaired or threatened by an unknown cause. ''Where the cause of the impairment or threat is unknown, identification of the pollutant(s) causing the impairment or threat is required as the first step in establishing the TMDL.'' Proposed 130.27 We are very troubled by this requirement for, absent any chemical, physical or biological evidence of an actual pollutant, it is entirely likely that the water body is not actually impaired or threatened. Listing is a regulatory trigger, and ''unknown causes'' is not a threshold justifying this step.
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Other provisions in the proposed rule also make listings due to ''unknown causes'' questionable. For example, EPA's support for the use of evaluated data and procedures will undoubtedly lead to many circumstances where regulators are faced with a situation requiring a judgement call—such as when the species biodiversity in a given ecosystem is not as robust as expected but no pollutant can be detected. EPA would surely expect the State to identify that water body as threatened or impaired, listing the cause as ''unknown.'' But the regulatory implications of such a questionable listing cannot be overlooked. Instead EPA should require sound science principles prior to listing, rather than expect them to emerge thereafter during the TMDL development process. EPA should revise the proposed TMDL rule to eliminate the requirement that States list waters on the basis of unknown pollutants.
2.5 Listing Waters that Exceed a Narrative Standard
EPA proposes that the exceedence of a narrative criterion is a basis for placing a waterbody on a State's 303(d) list. EPA Preamble, at 20. Some States routinely use narrative criteria to supplement numeric criteria or when numeric criteria cannot be established, such as:
ambient pollutant levels shall not exceed the lowest levels technically and economically achievable; or
no individual pollutants shall be present in concentrations that adversely affect beneficial uses.
A critical factor is whether States can determine how the narrative criterion can be validly interpreted for specific pollutant loads under varying conditions and at different sites. Only recently did EPA even require States to begin identifying the translator methods they intend to use to interpret and implement narratives as they pertain to point source discharges of toxic pollutants (63 Fed. Reg. 36742 at 36765, July 7, 1998).
Since this process is incomplete, and since no provision has been made for nonpoint sources and pollutants in addition to toxics, EPA should alter its proposed TMDL rule to remove a reliance on purely narrative criteria as a basis for listing and requiring the establishment of TMDLs.
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2.6 Listing Waters Impaired by ''Pollution''
EPA proposes to require States to list all waters impaired or threatened by pollution as defined by 40 CFR 130.2(c), but for which no pollutant(s) can be identified. EPA sets this up as ''Part 2'' of a 303(d)(1)(A) ''comprehensive listing of impaired and threatened waters.'' Proposed 130.27. However, there is no statutory authority for this proposed requirement, and it is unnecessary since State 305(b) biennial reports already provide such a comprehensive assessment of State waters.
The statute expressly requires the 303(d)(1)(A) listing to identify those waters for which technology-based effluent limitations governing the discharge of point source pollutants are not stringent enough to meet water quality standards. 33 U.S.C. 1313(d)(1)(A). This list is not the ''comprehensive public accounting'' envisioned by EPA in the proposed rule; this list is a regulatory trigger—explicitly identifying those waters for which enforceable TMDLs are required for all pollutants. 33 U.S.C. 1313(d)(1)(C). Since the statute requires 303(d) lists solely for the purpose of triggering the calculation of TMDLs, waters not requiring TMDLs do not belong on the list. Surely EPA must recognize the probable confusion that will result from requiring the placement of ''pollution''- impaired waters on 303(d) lists.
2.7 Mandatory ''High'' Priority Ranking:
EPA proposes that two categories of waters must be assigned a high priority for TMDL establishment: (a) waters designated as public drinking water supplies where ''the impairment is contributing to a violation of an MCL''; and (b) waters containing threatened or endangered species, unless the State can demonstrate that the impairment does not affect the species. 64 Fed. Reg. at 46,026; Proposed 130.28(b). Current law grants states the discretion to establish priority ranking based on local conditions within the general guidance provided by the statute. EPA does not have the authority to require a ''high'' ranking for such waters listed as impaired or threatened.
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The proposed ranking is also illogical. If a State were required to develop expedited TMDLs for drinking water sources that are thought to be ''threatened,'' it is entirely possible that, by the time the TMDL is completed, continued monitoring could had established that the water body should never have been listed. Furthermore, mandatory listing of waters containing protected species would essentially prioritize a majority of the waters in some States, particularly some western States. This also would provide EPA a ready excuse to take over the State's TMDL preparation, for such States could be overwhelmed by the forced prioritization and EPA maintains that it will have the discretion to prepare TMDLs for high priority waters if a State fails to do so within five years. EPA should allow States to identify priority listings and schedule TMDL development based on priority and resources available.
2.8 Listing Waters that are Expected to Meet Standards
Another part of EPA's multiple 303(d)(1)(A) ''comprehensive public accounting'' lists (and another that initially would not require the calculation of TMDLs) would require States to identify what are commonly called ''expected-to-meet'' waters. These are, in part, impaired waters for which ''controls enforceable by State, Territorial, authorized Tribal or Federal law or regulation are expected to result in attainment of water quality standards by the next listing cycle.'' Proposed 130.27(a)(4).
This may cause the development of a TMDL when effective controls are already in place. Part 4 waterbodies must become Part 1 (TMDLs required) waterbodies if water quality standards are not met at the next listing cycle. In fact, appropriate NPS controls may be in place and water quality may be improving, but water quality standards may not yet be attained. This may be because it takes longer than two years for a given watershed to respond to treatment, and not because the treatment is incorrect. The recovery process often takes more than two years. Establishment of an improving trend in water quality for a waterbody should be sufficient to maintain Part 4 waterbody status.
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The provision principally focuses on alternative controls of waters impaired by point sources and publicly owned treatment works. But it could just as well describe waters temporarily impaired by excessive NPS runoff of nutrients or other land use practices. We recommend that EPA delete this provision from its final rule. Should the final rule retain this provision, we suggest that EPA extend its ''expected to meet'' limit to at least five years, and recognize that effective regulatory and nonregulatory NPS mechanisms may well take a decade or longer to attain water quality standards.
2.9 Listings Based on Antidegradation Considerations
EPA proposes that States be required to list waters as impaired or threatened based on various ''antidegradation'' considerations. The CWA specifies that water quality standards ''shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.'' 33 U.S.C. 1313(c)(2)(A). A failure of a water body to meet water quality standards and thus be listed as impaired results from a failure to support a designated use or a failure to meet water quality criteria. There is no mention in the CWA of EPA's antidegradation policies as defined under 40 C.F.R.131.
Federal antidegradation requirements do not create, nor were they intended to create, State regulatory authority over otherwise unregulated activities. It is the position of EPA that, at a minimum, States must apply antidegradation requirements to activities that are ''regulated'' under State or Federal law (i.e., any activity that requires a permit or a water quality certification, such as the Clean Water Act 401 certification, or any activity subject to State nonpoint source control requirements or regulations). Because of these caveats, it is inappropriate that EPA's proposed rule includes:
''Tier 2 water bodies as threatened if trend analysis indicates that a designated use (pursuant to 40 C.F.R. 131.10(i)) will not be maintained by the next listing cycle.'' (Preamble at 28). These are water bodies for which existing water quality is better than the minimum necessary to support propagation of fish, shellfish, wildlife and recreation, and for which the water quality standard is adjusted upward to protect this existing quality. Any decline in water quality is not authorized, unless an antidegradation analysis is completed as required in 40 C.F.R. 131. EPA does not require these water bodies to be listed as impaired under 303(d) and the Agency's antidegradation rules. But listing as threatened will trigger significant regulatory oversight. There is no statutory authority for such a listing. We urge EPA to eliminate all reference to ''threatened'' Tier 2 waters.
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''Tier 1 water bodies as impaired if the existing or designated uses are not being attained.'' An existing use is a use that has actually occurred since November 28, 1975 (when the water quality standards regulation was published). Under EPA's proposal, a member of the public may demonstrate to a State an existing use that is different from the established designated use, and the waterbody must be listed as impaired if the existing use is more protective than the designated use. Preamble at 28. We believe that the Tier 1 antidegradation policies protecting existing uses more accurately protect historic coincidence and societal convenience than water quality itself. As EPA points out, it is very difficult to define when a use is ''existing.'' If a waterbody is not really fit for swimming, why should a State be required to protect forever a recreational use just because a few adventuresome children chose to swim in it on several occasions since 1975?
States should have the authority to avoid or terminate tier 1 protections of existing uses in order to achieve designated uses. For example, if a waterbody lacks a State-designated use, the State should not be forced into designating that existing use and never changing it. It is counter-productive for EPA Tier 1 antidegradation policy to trump the use designation authority granted to States by 303 of the CWA. We believe that EPA should modify 40 CFR 131 to remove the ''existing'' use and tier 1 antidegradation characterizations from the regulation and eliminate the burden that goes into determining and protecting an existing use. Similarly, we believe that EPA should modify its proposed TMDL rule to eliminate listing on the basis of EPA antidegradation regulations.
2.10 Use of Safe Drinking Water Act Standards
''Drinking Water Source'' is a very common designation for waters of the U.S. But since surface water is generally filtered and further purified before being consumed, ambient water quality is not a good predictor of finished drinking water quality. EPA suggests that State listing decisions should be based on whether ambient water contaminant values exceed finished drinking water SDWA drinking water standards (''maximum contaminant levels'', or ''MCLs''). This is unfortunate, for MCLs are detection limits that are applied on an annually averaged basis to finished water at the household or institutional tap, not to ambient source water, to determine regulatory compliance of public water supply companies. It is wholly inappropriate for EPA to suggest or require that States list waters as impaired or threatened based on determinations of whether ambient water meet standards for finished drinking water.
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Equally improper is EPA's requirement that States use MCLs as surrogates for ambient water quality criteria intended to represent Total Maximum Daily Loads. EPA's preamble discussion indicates that if a State's 303(d) listing of a waterbody is based on a drinking water designated use, but the State has not adopted a water quality criterion for the pollutant(s) of concern, States are to use a reference point sufficiently below the drinking water MCL to prevent all excursions above the MCL at the source water intake as its starting point for developing a TMDL. EPA Preamble, at 18.
Because of seasonal spikes in flow, contaminant loads and consumer demand, compliance with MCLs is determined on an annual average basis. This averages out short-term fluctuations in contaminant levels and provides a more accurate determination of the bulk water quality status. Also, aging pipes are known to retain bacteria and other contaminants, so compliance monitoring is conducted at the tap, not the ambient water intake. An entire scientific industry has developed to produce the technologies that public drinking water supply companies use to filter, chlorinate, and treat with ozone, activated charcoal and ultraviolet light to remove harmful contaminants, odors and distaste. MCLs are promulgated as drinking water standards taking these treatment steps into consideration. It is wholly inappropriate for EPA to suggest or require that States list waters as impaired or threatened based on determinations of whether ambient water meet standards for finished drinking water. Equally improper is EPA's requirement that States use MCLs as surrogates for ambient water quality criteria intended to represent Total Maximum Daily Loads.
2.11 Proposed Extended Duration of Listing Cycle
States and others have presented strong arguments that the current two-year listing cycle should be increased to a four- or five-year cycle. The burdens associated with listing would be reduced, and longer listing cycles would allow States to divert resources to TMDL development responsibilities. Some would argue that the quality of the data would benefit from an averaging of several years' data. However, ''threatened'' waters and those erroneously listed as impaired would be retained on the list for a much longer period. It is possible that, with a five-year listing cycle, States could complete an expedited TMDL for an erroneously listed ''threatened'' drinking water source or endangered (or threatened) species habitat. Businesses subject to antidegradation restrictions triggered by erroneous listing decisions should not be subject to a four- or five-year listing cycle without some mechanism for interim delisting. We cannot support a longer listing cycle without such a delisting procedure.
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2.12 Lack of Provisions for Interim Delisting of Water Bodies
EPA's proposed requirement that States list waters that are impaired or threatened because of pollutant(s), pollution, unknown cause(s) or in response to citizens' petitions will no doubt create circumstances where, sooner or later, a listed waterbody is found to identified in error. Existing regulations do not address the question of when States can remove previously listed water bodies from their lists.
Current guidance (National Clarifying Guidance for 1998 State and Territory Section 303(d) Listing Decisions, Robert H. Wayland III, Director, Office of Wetlands, Oceans and Watersheds, August 27, 1997) identified two circumstances that would justify removing previously listed water bodies: (a) if water quality standards are being attained or are expected to be attained within two years, or (b) if, upon re-examination, the original basis for listing the water bodies is determined to be inaccurate. In addition, current guidance (Guidance for 1994 Section 3039d) Lists, Geoffrey H. Grubbs, Director, Assessment and Watershed Protection Division, November 26, 1993) gives States the option of removing previously listed water bodies after EPA approves a State-established TMDL. Neither guidance document provides for a mechanism for submitting delisting petitions to EPA between listing cycles.
The FACA Committee recommended that States have procedures for interim delisting, based on findings that standards have been attained or that new information indicates the original basis for listing was inaccurate (FACA Report at 19). EPA's proposed TMDL rule provides delisting opportunities only when States develop their next lists. No such interim delisting provision was authorized. Proposed 130.29. EPA's proposal, however, emphasizes the availability of a process for citizens to petition EPA between listing cycles to list waters, but includes no process for citizens or States to petition or take action to delist waters where appropriate between cycles.
On the other hand, EPA has proposed to lengthen the listing cycle from two years to as many as five years, further exacerbating the interim delisting problem. Listing triggers adverse regulatory consequences for landowners and businesses in the affected watersheds, and TMDL develop activities for States. Prompt delisting, when shown to be appropriate, should be an integral part of EPA's final rule.
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2.13 Consideration of Seasonal Variations in TMDLs
The CWA requires that TMDLs '' be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.'' 303 (d)(1)(A) (emphasis added). In its proposed TMDL rule, EPA interprets this to mean that the TMDL must be sufficiently conservative to prevent all excursions above any applicable water quality standard, regardless of the severity of seasonal storms. EPA Preamble, at 18.
Some States have interpreted ''with seasonal variations'' in the opposite manner, allowing TMDL load levels to include provisions for the exceedance of the applicable water quality standard if severe storms occur. Considered ''Acts of God,'' these excursions are not considered to adversely impact the effectiveness of the TMDL. Other, less severe seasonal variations are also embraced by some State water quality standards. Where State water quality standards provide that episodic events do not exceed the designated use criteria, there is no violation of water quality standards. Where State water quality standards do not allow designated use criteria to be exceeded by these episodic events, violations will occur regardless of the BMPs used.
Where the designated uses of the water are not impaired by the criteria being exceeded, or the violations are caused by legacy impacts on water quality, EPA should provide States the flexibility to amend their water quality standards to embrace these factors. EPA should not require any TMDL to be so stringent as to prevent all excursions above any applicable water quality standard, regardless of the severity of seasonal storms.
2.14 Allowance For Future Loading
Under the EPA proposal, States would be required to calculate TMDLs that include ''an allowance for future growth, if any, which accounts for reasonably foreseeable increases in pollutant loads.'' Proposed 130.33(b)(9). States may choose not to set aside potential assimilative capacity for future increases in loadings (64 Fed. Reg. at 46, 032), although EPA's intent is clearly to require an allocation. When combined also with the required ''margin of safety,'' this set aside for growth could deprive present stakeholders a considerable amount of current assimilative capacity. This could render TMDLs much more stringent today than actually needed, since continued technological advances are likely to reduce individual source loadings in coming years.
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We urge EPA to clarify in its final rule that States may choose the extent to which an allowance for future growth is made, such that TMDLs for some pollutants not expected to increase may have no allowance while other pollutants on the same water body could have an allowance made. Since States may choose whether or not to make such an allowance, this should not be a condition of TMDL approval by EPA.
2.15 Implementation Planning
Along with EPA's proposed conversion of TMDLs from a calculation to a ''plan,'' the Agency also would require that an implementation plan be among the components of an approvable TMDL. This is despite the Agency's admission that 303(d) does not provide any additional implementation authorities beyond those that already exist elsewhere in State or Federal law. 64 Fed. Reg.46,030. Actually, there is no statutory requirement under 303(d) that TMDLs even be implemented once developed. Rather, 303(e) only requires States to include TMDLs in their continuing planning processes. 33 U.S.C. 1313(e)(3)(C). EPA has improperly proposed to grant itself the authority to require TMDLs and approve, disapprove or write implementation plans for State TMDLs under 303(d), including (with this rule) those calculated to address NPS impaired and threatened waters.
Legal authority aside, EPA's proposed requirement presupposes that States can fully and accurately anticipate the rainfall and other climatic pressures as well as the funding, resources, processes and mid-course adjustments that will be needed over the course of TMDL implementation. States must not be trapped into making multi-year commitments up-front to achieve goals that may not be achievable. There is no incentive for States to be aggressive in such planning.
Of course, delegated States have always had the discretion to implement TMDLs once calculated. This is happening already in several States which have chosen to use TMDLs as a means to deal with NPS contributions to impaired water bodies for which State law requires regulatory action. Typically they implement TMDLs with existing Federal, State and local authorities and couple them with, at least initially, aggressive voluntary efforts.
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This model works fine at a State level, where voters and authorities have chosen to pursue enforceable NPS mechanisms on some or all water bodies. However, EPA's effort to establish the requirement for implementation plans as national TMDL policy concerns us. This is especially troubling when considered in context of the proposed coupling of TMDLs for waters threatened and impaired by NPS with the proposed Federal take-over provisions on almost all aspects of TMDL development and implementation. We believe EPA has exceeded its authority.
We are convinced that the proposed linkage of NPS listings, NPS ''load allocations,'' TMDLs, and implementation plans to EPA's take-over authorities contradicts Congress' commands. Congress bypassed the opportunity to regulate NPS runoff several times during the last 27 years, and explicitly Stated as recently as 1995 that such programs should remain incentive-based rather than enforceable. Federal control—implicit or explicit—over State management of NPS land use activities is a likely outcome of this proposed rule. The current ''strong and diverse'' authority that EPA asserts it possesses to implement controls over nonpoint sources (64 Fed. Reg. at 46, 034) amount to no more than its basic authority to administer the 319 NPS management program, where its ''implementation'' efforts would be better focused.
2.16 Public Review
Our strong support for the use of sound science and common sense in clean water policy decisions extends to the role of public review of TMDL program components. We agree with EPA that the public should have the opportunity to review State and EPA decisions, examine the criteria used to make the decisions, and have a forum for voicing comments and concerns. This includes public review and comment on EPA's basis for disapproving or approving a State's 303(d) lists, methodologies and TMDLs, as well as State criteria and decisions, such as:
all existing and readily available data considered;
identification of specific pollutant/pollution combinations;
methodologies to consider and evaluate all existing and readily available data and information, including data quality and age, degree of confidence in the information;
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selection factors States use to include water bodies on their lists, such as number and degree of exceedances of criteria and designated uses used to determine if water bodies are impaired or threatened;
basis for determining that a particular water body is threatened;
basis for the priority ranking of the listed water bodies; and
schedule for establishing TMDLs.
It is entirely appropriate that the public (including the regulated community) have the opportunity to review these documents, basis for decisions and timetables in advance.
2.17 Coordination with Other Agencies over Endangered Species Considerations
EPA's proposal makes it clear that EPA-approved TMDLs must not jeopardize the continued existence of endangered or threatened species or their critical habitat. This is consistent with the draft MOA signed by EPA, U.S. Fish & Wildlife Service (FWS) and National Marine Fisheries Services (NMFS) describing the integration of species protection goals into national water quality standards and NPDES permitting programs. Fed. Reg. 2442 (January 15, 1999).
In its proposed rule, however, EPA requires States to consider any comments received from EPA, FWS, or NMFS and document their consideration of public comments received as well. 130.37(d)(3). EPA instructs States to indicate whether they agreed or disagreed with the comment, and if they disagreed with the comment, their response must explain why they disagreed and why they concluded it was reasonable to act despite EPA, FWS, NMFS or public comment. As part of EPA's approval or disapproval of a State's TMDL, EPA will review State responses to any comments submitted by FWS or NMPS. 130.37(d)(4). We remind EPA that States have the discretion to consider and act upon any comments received. 64 Fed. Reg. at 46,038. State TMDLs are governed by State water quality standards, designated uses and water quality criteria. While these standards may generally tend to be consistent with protection of listed species, it is the water quality standards, no the species considerations per se, that governs whether TMDLs have been set appropriately.
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2.18 Likely Costs
EPA has greatly underestimated overall costs of these proposed TMDL policy changes. The agency estimates the incremental costs to States at less than $25 million per year and that the private sector would incur no costs. (EPA Preamble, at 73). EPA also overlooks all incremental costs for Federal agencies affected by the rule, such as the Natural Resource Conservation Service, Forest Service, Fish & Wildlife Service or even EPA.
Costs to States and the private sector could total many billions of dollars. In a July 29, 1999 memorandum to the White House Office of Management and Budget, State water regulators (Association of State and InterStates Water Pollution Control Administrators) reported an estimated annual impact on States of greater than $200 million annually, and more than $5 billion total. Under the Federal Unfunded Mandates Reform Act, the EPA must prepare a written Statement, including cost-benefit analyses, for proposed rules with ''Federal Mandates'' that may result in State, local and Tribal governments' costs in the aggregate, or costs to the private sector, of $100 million or more in one year.
On October 28, 1999 testimony before the House Agriculture Subcommittee on Department Operations, Oversight, Nutrition and Forestry, both Democrats and Republicans challenged EPA's assessment of costs and impacts on States and the private sector. Arthur Nash, of Michigan Department of Environmental Quality, told the panel that States would be hard hit by these policy changes. The proposed rule would divert already limited resources and would force States to rewrite carefully developed State policies to meet EPA expectations. Michigan is convinced that this would actually reduce water quality by interrupting ongoing programs.
Among Federal agencies, the costs of planning and implementing the TMDLs and related BMPs on Federal lands, as well as those for technical, oversight and enforcement activities, could dwarf State TMDL development costs. Yet, the Agency provides no estimate of such incremental costs for USDA, FWS, or even EPA. In written comments to the Agency, the U.S. Department of Agriculture (USDA) strongly criticized EPA for overlooking the probable expenses to Federal and State agencies and the private sector. The comments suggested that costs in the private sector could exceed State costs if the TMDL program regulates agricultural runoff, forces land use changes, and requires NPDES permits of thousands of small farmers and agribusinesses. The agency pointed out that, despite the requirements of Executive Order 12866, the proposed rule ignores these costs, as well as the direct impact on animal producers, feed grain farmers, and other small businesses. The Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act, generally requires Federal agencies to conduct an initial regulatory flexibility analysis describing the impact of the regulatory action on small entities. The EPA Administrator certified that this proposed rule would not have a ''significant economic impact on a substantial number of small entities '' But as USDA comments point out, the costs of implementing the TMDL management strategies likely will be very significant and will be borne for the most part by small entities such as agricultural producers, agribusinesses, and rural communities. Most of these small entities will not be able to pass on the cost of implementing these pollution controls.
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3.0 Conclusion
APPA's strong commitment to water quality and sustainable development stands; however, we cannot support EPA's proposed rule for the reasons given above.
Statement of Bob Good
I am a farmer and environmentalist. I believe in clean air and water. I grow chickens for Tyson Foods.
I have farmed for 33 of my 66 years on this planet. I would like to continue farming, but I don't know how much longer I can afford it. I feel like the bankrupt farmer who won the Missouri lottery. When he returned from collecting his money, his neighbor asked him what he was going to do now. The farmer replied, '' I'm going to keep farming until this money runs out.''
Tyson requires a nutrient management plan before they will put baby chicks on my farm. I must test my soil annually even though the Land Grant Universities recommend only every 3–5 years. I must test my litter every time I clean out my chicken houses. These plans cost $1,000 - $1,500. This is just the tip of the iceberg since implementation will cost many times more. All Tyson Complexes have an overall environmental plan, and most have a person dedicated solely to environmental issues. Tyson estimates the cost of the implementation of TMDL's on all contract farms as tens of millions of dollars. So the estimates in the EPA Proposals fall far short of actual costs.
I've had a nutrient management plan for my farm since 1991. It was based on nitrogen. Now they tell me it is obsolete since current plans must be based on phosphorus. How many more times will the parameters change before the final requirements are established? Each time they change I have to have a new plan. Thank goodness Tyson helps with our plans. They also have awards and incentive programs for growers that practice good environmental procedures.
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USDA figures show less than 1 million independent family farmers left in the U.S.. We feed the other 263 million people.
I haven't seen any quality scientific data to justify more stringent regulations. In fact, the data I've seen indicates that current voluntary practices are working. Voluntary practices reduced the phosphorus level in the Illinois River by 33 percent in
three years.. I'd like to present a summary of data from Boone, Carroll and Washington Counties. These data were collected by NRCS and the U.S. Geological Survey in cooperation with the Arkansas Soil and Water Conservation Service. They surveyed 14 springs and wells in Carroll County after litter had been spread in the area for several years. These areas were selected because they had background data on these water sources before litter was spread there. There were no significant increases in the levels of 20 water constituents based on the background data. The same study was done on 9 springs and wells in Boone County with the same results. Long term studies are currently under way near Savoy in Washington County. There are 401 ponds and wetlands; 601 seeps and small springs; 69 deep wells and 117 shallow wells being monitored. So far the results are the same as Boone and Carroll County results. These data were given to me by Dr. Van Brahana who is a hydrogeologist at the University of Arkansas. He is retired from the U.S. Geological Survey Service. Dr. Brahana said, '' The vast majority of stream impairment in Northwest Arkansas is due to leaking septic tanks, and you can quote me on that.''
EPA keeps talking about their authority to mandate clean water. If they will give us the scientific data to show this is needed and how to do it economically, we'll do it. No one in the world knows the importance of clean water better than farmers. It's essential for his crops, his livestock and most importantly his family.
Remember: The closer to ideal we get the more difficult and expensive clean water becomes.
Mr. Adams said in the Senate hearings, ''This is about farmers and ranchers, their livelihoods, their businesses and their families.'' I would hasten to add, ''And feeding the American people''.
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My greatest fear today is being driven out of farming by useless government regulations.
I would like to ask the bureaucrats. Do you expect me to feed you when you're telling me the water that runs off my land must be cleaner than the rain that fell on it in some cases? What will you tell the American people when you hand them a glass of clean water, but they have no food to eat—especially when there are 1 million unemployed farmers standing there saying, '' We would love to feed you if only the government would let us?''
Thank you for the invitation to speak tonight.
Statement of Randall Mathis
Mr. Chairman and honorable members of the House Agriculture Committee; it is indeed an honor to appear before you and testify on this very important issue.
Mr. Chuck Fox, Assistant Administrator for Water, EPA, Washington, called me in early April. He asked what course I would recommend he take to address concerns raised about the proposed regulations that addressed TMDL and NPDES for agriculture and silviculture. My advice to Mr. Fox was that EPA should pull back the regulation and change the language to comport with what he and Administrator Carol Browner were saying about the regulation. Most of the concerns were addressed in an EPA and USDA meeting convened in April which resulted in the issuance of a joint Statement May 1, 2000, by the EPA and USDA. The changes they proposed, in my view, make the regulation supportable. However, I have a major concern with the joint report. It appears that EPA accepts part of the ruling by a U.S. District Court Judge on its authority concerning the TMDL initiative while ignoring the second part.
The court ruled that the EPA has the authority to include non-point pollution sources in a TMDL process. EPA agrees, as do I. However, the U.S. District Judge ruled that although TMDLs are part of the Clean Water Act, the TMDL guidelines should only be advisory to the States. EPA tends to interpret its guidelines as a fact of law, even though many are adopted without having public input. District Judge Alsup also ruled that non-point sources of pollution should not be subject to direct mandatory regulations under the Clean Water Act. Apparently, the EPA disagrees. The joint Statement continues the discussion of requiring permits under certain circumstances. In my opinion, permits could only be required if the EPA changes the definition of which activities require a point source (NPDES) permit. The EPA has lost a significant majority of its legal challenges arising over its interpretation, rather its misinterpretation, of the environmental laws enacted by the U.S.Congress. It seems to me that the EPA would have to declare sheet runoff from rainfall to be a point source of pollution. Example, a section of land being farmed or having a silviculture activity carried out would have rainfall runoff for a distance of one mile. The EPA must not be allowed to circumvent the laws and intent of the U.S. Congress by defining such non-point source activities to be point source discharges.
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The current EPA administrator has given interpretations to Federal law that was never intended by the Congress. I believe many of those interpretations wrongfully flavor the EPA regulations to the extent that a backlash is created that is harmful to the efforts to protect the environment. The EPA has a dismal record in defense of such regulations. When it has been challenged in the U.S. District Courts, EPA has lost in 70 percent to 90 percent of the cases as Judges have ruled that it has overstepped its authority.
I have every confidence in Mr. Chuck Fox's integrity and fully believe he will keep his commitments if he is allowed to do so.
There were in excess of 30,000 comments on the proposed regulations concerning mandatory controls for non-point sources and in some cases it would require permits for agriculture and silviculture. Some two thirds(20,000) of those comments came from forestry which has caused EPA to exempt forestry for some period of time. However, it appears that once EPA imposes the regulations on the agriculture industry it will again propose regulations for the forestry industry. This approach appears to be the old divide and conquer approach. I believe that it is important that we recognize that farmers depend on good quality water every day perhaps more than any other group or industry. Poor quality water can cause lower crop yields and less weight gain in cattle and milk production. The farmers are good stewards of our God given Natural Resources and in Arkansas approximately 80 percent of the silviculture activities are following the Arkansas Forestry best management practices. In the Moores Creek watershed, in Northwest Arkansas , 95 percent of the farmers are following voluntary best management practices (BMP's) and water quality is improving. I farmed for a number of years and know that farmers are ''free spirits'' who will work cooperatively to protect the waters of our nation. I dare say that had government regulators told the farmers in Moores Creek watershed that you are required to use BMP's that there wouild be far less than the 95 percent participation in BMPs that are now carried out voluntarily.
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Moreover, we must not forget that the ever increasing national balance of trade deficit would be even greater were it not for the export of our agriculture and silviculture products.
Although many of the desired changes have been made in the proposed regulations, I believe that legislation that is proposed by Senator Cirapo and Senator Bob Smith, S1417, is needed. This is particularly true of sections 3 and 4 of the bill. Section 4 requires the EPA to contract with the National Academy of Sciences (NAS) for the review of TMDL's now being used and to make recommendations on improving them. Section 3 provides much needed funding in the form of grants to States and landowners.
State environmental programs have matured. The State will be doing 90 percent or more of the TMDL work. Therefore, Congress should add additional funding for both the 106 and 319 programs.
A recent study shows that States have received authority to run 70 percent of the delegable environmental programs; States provide 75 percent to 80 percent of all enforcement of environmental laws and regulations and provide greater than 94 percent of all the data in the EPA data base. Even though the States are faced with rapidly growing environmental workloads and responsibility, the EPA continues to unnecessarily increase the number of staff in the Washington office. In light of EPA's isolating its salary and administrative costs in its appropriation behind a ''Chinese wall,'' I am concerned about how much of the appropriation envisioned in section 3 of S1417 will be available to States. The people would be much better served if all but about 500 Washington staff were moved to the EPA Regional offices where the real work is done.
Mark Twain once said ''Common sense is not too common''. I trust that common sense will prevail in the debate of this important issue.
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Statement of Johnny Loftin
I'm Johnny Loftin, a contract poultry producer and independent cattle and timber farmer. I've lived on a farm all my life, 62 years. For 38 of those, I have been in poultry production. Twelve of those years were spent in supervision of poultry production for a local poultry company. During this time, I've seen numerous changes in the production of poultry.
Poultry growers, like other landowners, are concerned that EPA's proposed TMDL rules would lead to more restrictions on the way we use our private property.
Poultry producers in Arkansas already are adopting Best Management Practices (BMPs) to deal with their manure management process. (See the attached report.) These practices are being done voluntarily and to our knowledge in a successful manner. Practically all poultry growers have implemented the BMP concept, which has been very costly to each personally.
The proposed TMDL rules would only add another layer of compliance to efforts already underway. In addition to any compliance steps associated with TMDLs, poultry producers also face other challenges from the ''alphabet soup'' of EPA programs. These include the Agency's AFO and CAFO requirements, for large operations—the possibility of NPDES permits, and emerging standards for CNMPs (certified nutrient management plans.) The cost to producers for compliance with the current and proposed environmental rules is an estimated $14,000 per 30,000 bird capacity house per year. (See attached table taken from a SBRIFA study by EPA last year.)
I, too, am concerned with the data that the agencies use to justify regulatory action. An independent review of the scientific and cost components of TMDL and other EPA rules is needed. If farmers are to comply with certain standards, let's make sure they are done right instead of done quickly.
Other farmers and I are willing to do those things necessary to protect our natural resources. We live on the land—we depend on the water—we breath the air. It is our livelihood! If it's in anybody's interest to protect these elements, it's ours. We have a good partnership now with several of the Federal and State agencies. A partnership that promotes and assists us in our voluntary initiatives to address nonpoint source pollution concerns. The TMDL process as applied to nonpoint issues represents a concept that, at least, needs further clarification and study—at most, needs to be limited to only point source concerns.
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These and other regulatory issues that my fellow farmers and I face do add directly our cost of operations. These costs cannot be passed on—they must be absorbed into my production expense budget. Anything you do as an agency will cost me personally—I am the one ask to comply and pay for it. The continued ratcheting-up of regulatory requirements, sooner or later, will force many producers out of business.
Action is needed by Congress to slow this regulatory process and to place these issues on a sound and realistic track.
Statement of David Hillman
The Arkansas Farm Bureau Federation appreciates this opportunity to provide comments concerning H.R. 4502, which addresses the Clean Water Act's Total Maximum Daily Load (TMDL) program. Arkansas Farm Bureau is the largest farm organization in the State with a membership of over 216,000 families. Our membership and others in the agricultural community are highly concerned with the potential impacts on EPA's proposed TMDL rules. This interest has been demonstrated already this year by producer attendance of over 8,000 across three meetings held in the State on this subject.
On August 23, 1999, EPA proposed sweeping changes to the current regulatory requirements for establishing TMDLs under the CWA. The proposed regulation has the potential to allow EPA to take over State land use and economic growth decisions under the pretext of reducing nonpoint pollution. Thus far, State law and regulatory authority have always had primacy over Federal law and EPA's regulatory authority under the CWA.
EPA's TMDL proposal enables EPA to override existing State law and regulatory process by mandating TMDLs that States must achieve. This removes the authority of the State to decide the best approach for dealing with water quality.
The TMDL ''process'' proposed by EPA requires their review and approval and/or disapproval of a State's lists and TMDLs within 30 days of the date of submittal. If EPA disapproves a list or a TMDL, EPA must establish the list or TMDL for the State. The power to do this, to dictate load limits for nonpoint sources, is the power to dictate the land use to achieve those loads.
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Having reviewed the EPA's proposed regulation and current law, we have serious concerns over many of EPA's proposals. Congress designed the TMDL program in 303(d) to focus on waters impaired by point sources, as a means to calculate acceptable pollutant loads to assist State efforts to effectively regulate point source industrial activities, and to provide States the flexibility to achieve these water quality goals. Congress enacted 319 to reduce the effects of nonpoint source (NPS) runoff from agricultural, silvicultural and other land use activities.
Many of the provisions generate unnecessary controversy and confusion, and actually undermine successful Federal and State NPS water quality programs. EPA also has misjudged key determinants, such as the likely costs to State and Federal agencies and the private sector and the likely impacts of the proposed changes.
The proposed regulations permit EPA to list nonpoint-source-impaired waters, to develop TMDLs for nonpoint-source-impaired waters and to establish implementation plans for nonpoint-source-impaired waters. In other words, the proposal provides for Federal land use regulation. EPA apparently believes they know how to require States to tell farmers and ranchers how to manage their crops and use their land.
Congress elected to treat point and nonpoint sources differently for good cause. Congress realized that because of its diffuse and complicated nature, nonpoint source pollution did not lend itself to rigid point source-type controls. Rather, nonpoint source pollution had to be managed through flexible standards. Watershed managers and nonpoint source professionals are well aware of this problem. Farmers and ranchers can't control the rain! But nonpoint source TMDLs expect them to. All four components of the term-Total, Maximum, Daily, and Load—imply a constant, engineered and controllable environment. For agriculture, this means that farmers are in jeopardy of breaking the law any time a significant rainfall event occurs. Such an outcome is preposterous.
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Congress recognized in 1972, while nonpoint sources can be managed ''to the extent feasible,'' they can not, and should not be expected to meet any quantifiable daily load limitations. Section 319 Nonpoint Source Program merely encourages States to reduce pollution ''to the maximum extent practicable'' through best management practices.
Compliance with 303(d) is not achieved until water quality standards are attained. For nonpoint source runoff, this raises the not-so-hypothetical possibility that a source would have to be eliminated from a watershed in the event that best management practices (BMPs) and modified BMPs ultimately prove ineffective in attaining water quality standards. This does not make sense to reasonable people who understand the vagaries of weather. The TMDL Federal Advisory Committee reached a consensus agreement that BMPs implemented to achieve TMDLs would have to pass the bar of practicability (economically achievable) as established in section 319. EPA has failed to introduce the concept of practicability in either the preamble or the proposed TMDL regulation.
The proposed regulations do not adequately address data issues—successful TMDL development and implementation will occur when States have attainable Water Quality Standards, when they have 303(d) lists which are derived by an ambient monitoring program, and not by drive-by assessments or windshield monitoring. States will need to devote sufficient resources to the TMDL development process in order to provide scientifically adequate input parameters and robust stakeholder involvement in the entire process. The TMDL program will fail if environmental extremists are permitted to highjack the process to their agenda of Federal watershed zoning.
EPA should revise its standard for data and require only the use of reliable data, e.g., to require the use of ''all reliable and credible existing and readily available water quality-related data and information.''
The proposed regulations unlawfully allow EPA to designate nonpoint sources as point sources. They propose to regulate nonpoint sources, private forestry and livestock activities for such practices as harvesting, site-preparation, road construction, thinning, prescribed burning, pest and fire control, land application of organic nutrients, and nutrient utilization plans, by requiring landowners to obtain point source discharge permits for these land use activities. This proposed action is an unjustifiable expansion of the Agency's authority, constitutes significant Federal intrusion in to private activities, and overrides State and private control of land-use decisions. We understand that in a letter issued June 8, 2000, Assistant EPA administrator, Charles Fox, agreed to delay further consideration of the proposed TMDL rule as they apply to forestry until later this year. The same concerns that warrant a delay for forestry exist for producers of other agricultural products. Further refinement is needed in the TMDL concept.
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Agriculture is willing to be a part of reasonable and lawful water quality management programs. Farmers and ranchers are ready to become engaged, active stakeholders in the water quality management process, but, the process must be reasonable. This new cooperative public policy structure will not be easy, it will take a long time to develop successful stakeholder consensus, the interpersonal relationships, and trust in the Agency for the process to succeed. Experience dictates that the only workable solution to watershed management is the ''bottoms up'' approach as opposed to the ''command and control'' approach EPA has proposed.
The provisions set forth in H.R. 4502 represents a reasoned approach to developing a program that meets the concerns expressed above. Accurate data upon which difficult rulemaking is based, additional resources for States to address their rightful responsibilities, and a critical review of this complicated and confusing issue are all called for in the bill and are needed to assure landowners of fair and equitable regulatory action. Additional time is needed to evaluate and , possibly rethink the TMDL concept. It is more important to get the rules done right than to get them done quickly.
Over the decades farm and ranch families have achieved extraordinary conservation gains through voluntary, incentive based programs to conserve fragile soils, wetlands, and to protect water quality and wildlife habitats.
The nonpoint source issues outlined in EPA's TMDL proposal are best addressed through incentive-driven programs, implemented by those with the most interest in the environmental quality of America's land and water resources. These are the people who own and work with those resources on a daily basis-America's farmers and ranchers.
We applaud your efforts in developing legislation on this matter, as we do others in the Congress who have offered legislative remedies to the TMDL problem.
Testimony of Corbet J. Lamkin
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The Arkansas Soil and Water Conservation Commission (ASWCC) is an agency of the State of Arkansas that establishes policy, makes funding and regulatory decisions relative to soil conservation, water rights, dam safety, water resource planning and development and non-point source pollution. The Governor of Arkansas has designated ASWCC the lead agency for agricultural non-point pollution and has delegated to it the responsibility for development of the Arkansas Non-Point Source Pollution Management Program.
The Arkansas Soil and Water Conservation Commission and I appreciate this opportunity to comment on this important issue.
It is my understanding that the Total Maximum Daily Load (TMDL) of a water body is the maximum load of a certain pollutant that the water body can accept without violating water quality standards.
The TMDL of a water body is also the sum of the waste load allocation from point sources plus the load allocation from non-point sources plus a margin of safety. Natural or background loads are included in non-point sources.
The proposed TMDL process appears to be:
Investigate to determine what, if any pollutants cause impair water use functions
Determine the current the current level of that pollutant
Determine the acceptable level of the pollutant
Find the difference
Develop a plan to reduce the load to an acceptable amount
Although logical as a management tool, the process may not be defendable for regulatory purposes due to the constantly changing nature of non-point source pollution.
The following are concerns that the ASWCC has regarding the TMDL process:
Many of the pollutant standards are narrative in nature (i.e. numeric standards have not been developed).
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The data available for determining non-point load allocations do not appear to be of sufficient accuracy or extent to be used in regulatory exercises. In addition, the monitoring to accumulate additional data is extremely expensive because of the need for storm event data.
Determination of non-point loading is difficult because of the loading carried in storm events as well as seasonal loading, loads vary due to amount of flow,and the contribution of atmospheric deposition originating outside of the watershed
The proposed use of models to establish TMDLs is questionable due to lack of accurate data. If modeling is not based on sound data and procedures; the result will only be the generating of new disputes and legal challenges.
Because of these potential vulnerabilities due to lack of scientific rigor, the Arkansas Soil and Water Conservation Commission recommends that the Water Pollution Program Enhancements Act of 2000 (S. 2417) be enacted. This act would provide a National Academy of Science review of the proposed rule and require the Administrator to consider the Academy's finding prior to adoption of a final TMDL rule. Additional positive effects of S. 2417 include increased funding and enhanced flexibility for providing matching funds under section 319 of the Federal Water Pollution Control Act (FWPCA); increased funding under section 106 of the FWPCA; and collection of reliable monitoring data under section 106.
Finally, the funds needed for the development of TMDLs could be more effectively spent for watershed management strategies and implementing conservation practices in accordance with resource management plans.
Testimony of Jim Francis
Mr. Chairman and members of the committee: Thank you for conducting this hearing and permitting me to testify. My name is Jim Francis. I live in Little Rock, Arkansas where I have resided since 1951. I come before you as a member of the Arkansas forestry community—a PNIFLO (that's P-N-I-F-L-O, an acronym for ''private non-industrial forest land owner''). We more than 100,000 PNIFLOs own 57 percent of the commercial forestland in Arkansas.
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Mrs. Francis and I own three modest sized tracts of woodland, one in Clark County and two in Nevada County, purchased piecemeal during the 1960's and early 1970's, and totaling somewhat less than 600 acres. This was not the forest primeval! It was farmland abandoned from cultivation during the 1930's and early 1940's, most of it stocked with naturally regenerated southern pines and various hardwood tree species. I became a registered Tree Farmer as soon as I was eligible. I found that forestry folk in Arkansas would share generously of their time, knowledge and experience to help a transplanted damnyankee from the corn belt of Illinois learn more and more about the management of a southern forest.
So, over the past 39 years, with the help of many persons in our forestry community, I have learned a lot about silviculture. It's the practice of ''agriculture in slow motion.'' Tree farming is not the way to make a fast buck!
But I've learned some other things too. One, pertinent to the subject of this hearing, is the fact that if one owns land with trees growing on it, some persons claim the right to dictate what the owner may and may not do in the responsible management of such private property. They are the anti-forestry advocates, the self-proclaimed environmentalists, dedicated to ending timber harvesting and forest management practices on all publicly owned lands, and impeding in every possible way the management of privately owned forests, both industrial and non-industrial.
I term the extremists among these, acting individually or as leaders and spokespersons for organizations (e.g. Sierra Club), the P-PZs—the Preservationist-Primitivist Zealots. For sake of brevity and descriptive accuracy I shall hereafter refer to them as such.
The written and oral testimony from many other witnesses documents the fact that forestry contributes no significant pollution to the waters of Arkansas. My enclosure No. 1, a Statement from the Arkansas Division of the Society of American Foresters (authored by Dr. John Gray who is here today) to the Environmental Protection Agency (EPA) in Washington summarizes this subject clearly and succinctly.
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My enclosure No. 2 is an article from the Arkansas Democrat-Gazette of December 30, 1999. In it I am quoted as saying that the EPA's TMDL proposal is preposterous. It is! To attempt to brand forestry in Arkansas as a ''point source'' of pollution is absolutely preposterous. The same article quotes Tom McKinney, the Sierra Club's principal spokesman in Arkansas, as saying, ''we think that the new regulations should affect (the forest industry). That is a big, fat yes.'' I am quoted further as saying that I believe the TMDL campaign ''is a slick move by the anti-forestry advocates (read P-PZs) to find some way to stop forest management and timber harvesting.'' I do indeed!
At the Senate subcommittee hearing on Senate Bill 2417 in Hot Springs last Monday night, Mr. Cooke of the EPA's Dallas regional office eventually admitted that lawsuits filed by environmentalists (read P-PZs) were the reason for EPA's crunch time actions regarding TMDLs. Sub-committee chairman, Senator Crapo of Idaho, questioned the reason for EPA's recently Stated intention to remove forestry from deadline dates in July, and deal with us separately later on. Was this a strategy of ''divide and conquer''? I suspect so; they did it before and succeeded in banning the use of 2,4,5T. If we don't hang together, we're more likely to be hanged separately.
So I do believe that this TMDL farce is merely the latest and current effort by the P-PZs to achieve government regulation of forest management practices, this time by-passing our legislative bodies and usurping their authority via bureaucratic agency regulation.
My full written testimony and several enclosures illustrate other attempts here in Arkansas over the past 20 years by the P-PZs to shackle our forestry community and infringe upon my private property rights.
A final enclosure is a book by Dr. Patrick Moore entitled ''Green Spirit''. I wish it were required reading for every person having any influence on public policy regarding forestry in this nation.
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Don't be surprised if some P-PZ labels me a paranoid part-time Arky Tree Farmer and a running dog of the forest industry, but their words will never harm me. But, please, please don't permit anti-forestry extremists within and outside of the EPA to foist this preposterous ''point source'' of pollution label upon forestry. We don't deserve it!
Thank you for your courtesy. I shall be pleased to answer any and all questions to the best of my ability.
Statement of Mark Troutz
My name Mark Troutz and I represent the Arkansas Cattlemen's Association. We respectfully submit these comments and wish to tell you of our appreciation to be able to share our side of the water quality story. There are over 32,000 cattlemen in the State of Arkansas and we believe that their best interests are in jeopardy.
Clean water is one of the top priorities of our cattlemen. Clean water equals healthy cattle. Healthy cattle equal a profitable operation. Without clean water our cattle simply do not produce as efficiently as needed. As good environmental and financial managers, we are already taking the necessary precautions to provide clean water for our livestock and ourselves. Gentlemen, Arkansas cattlemen face serious enough opposition from external pitfalls such as adverse weather, and adverse pricing without also facing the loss of business caused by the EPA. With the down cattle market over the last few years, many producers are in fear of a substantial threat to their livelihood by the EPA. Additional costs of production without the ability to set our own market price only set cattle producers up for significant losses.
EPA's current flawed data on Dioxin is only another example of the lack of logic floating upon the winds of politics. It is no wonder that cattlemen see non point source pollution control as guesswork at best. Combined with the pseudo science used by the EPA, cattlemen have concerns that this may be another carpetbag type of move.
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The EPA has no legal authority to directly regulate non point sources. The most probable outcome from the new proposed regulations will be a disastrous loss of income as cattle producers try to comply with these rules based on flawed science or on no science at all. How can a pollutant load be identified where there is no numeric standard to measure it against? The EPA defines ''evaluated data and information'' as a justified replacement for monitored data. This will only lead to more pseudo science that ultimately works against the true purpose of cleaning up our waterways.
Since it is fundamentally important for cattle producers and their livestock to have clean water, we would ask that the EPA be severely curtailed in their efforts to run roughshod over the cattlemen of our State. Who decides which operations are animal feeding operations? With no true feedlots in the State, we feel that more bureaucracy for no cause warrants investigation into the motives of the leadership at the EPA.
The staggering costs projected for the TMDL regulations pale in comparison to the monumental affect to be carried out upon the cattle producers of Arkansas. The current cattle market situation notwithstanding, our cattlemen feel that the EPA will utterly ruin their profit picture for the foreseeable future. Therefore cattlemen see the new regulations as a grab for their farm or ranch. The litigation that will be brought by cattlemen to save their farms, may be the very thing that will cause them to lose it. The proposed regulations go too far beyond what is needed to clarify the Clean Water Act. It seems to be purely an arrogant power grab of the State's duly appointed role.
The dust bowl era taught cattlemen a powerful lesson. Cattlemen have learned that to remain profitable, they must adapt and become the best true environmentalists. True environmentalism considers all factors and presents a win/win solution keeping soil, water, and air quality in priority. The self-policing efforts of the nation's cattlemen over the last ten years have been phenomenal. It is believed that the proposed regulations would actually harm and interfere with current plans to clean streams across the country.
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The State of Arkansas, the Natural State, has some of the most beautiful streams in the country. It is the desire and goal of all cattlemen everywhere to improve the water quality in the streams crossing our ranches. We believe that it is in the best interests of all citizens if we work within the current State systems to clean up pollution, when or if it truly exists.
Thank you very much.
Statement of Thomas Christensen
Mr. Chairman and members of the committee, thank you for inviting me to appear before you today to join William Hathway, Director of the Water Quality Protection Division of the Environmental Protection Agency, region 6, to discuss EPA's proposed rules on Total Maximum Daily Loads (TMDL).
USDA shares this Committee's commitment to cleaning the waters of the United States and building on successes in reducing water pollution over the past several decades. To some degree, those accomplishments were the easy part. The remaining pollution concerns, as highlighted in the President's Clean Water Action Plan which EPA and USDA helped prepare, are nonpoint sources of pollution such as soil erosion, urban runoff, pollutants from animal feeding operations and other sources that do not come from the end of a pipe. Addressing these nonpoint sources is the great challenge that remains to further improve our waters to make them fishable and swimmable for all Americans to enjoy.
To accomplish these next steps in cleaning our waters will take a concerted effort from farmers, ranchers, and forest landowners, as well as urban and suburban residents. Notwithstanding the work that remains, farmers, ranchers, and foresters have been working for years to reduce the effects of their operations on water quality. Much has been achieved in this regard using many of the conservation tools that the Congress and Department wrote into the 1985, 1990, and 1996 farm bills.
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For example, the Conservation Reserve Program has been an extremely effective tool in reducing erosion on highly erodible lands. Continuous sign-up of buffer practices under CRP has become an important part of water quality protection. The Wetlands Reserve Program and the Environmental Quality Incentives Program have benefited thousands of farmers and ranchers and helped them improve the environment by reducing soil erosion and runoff into streams and rivers. The Conservation Reserve Enhancement Program is playing an important role in protecting the waters of the Chesapeake Bay, salmon habitat in Oregon and Washington, and drinking water supplies for New York City. The President's fiscale year 2001 budget request includes $1.3 billion above currently authorized levels to bolster our agriculture conservation programs. We are proud of agriculture's and forestry's contributions to the nation's efforts to clean our waters, while recognizing that we can and should do more.
At a recent field hearing on TMDLs in North Carolina, Chairman Goodlatte, Congressman Ewing and Congressman Hayes called for a reasonable and responsible TMDL program structured around sound science, cost sharing and voluntary measures and programs. USDA and EPA agree and have worked closely together to achieve these principles. In February, the Secretary of Agriculture testified before the U.S. Senate on this issue. He said, I quote: ''I believe the TMDL rule should recognize the best management practices of America's farmers, ranchers and foresters; second, the rule should be more clearly constructed and should minimize adverse effects on agriculture and silviculture operations; and third, it should allow for reasonable timeframes for planning and implementation.''
As you know, in January of this year USDA Under Secretary James Lyons and EPA Assistant Administrator Charles Fox established an interagency workgroup of senior staff to review key issues. The group worked from January through the Spring and came to the agreement that has been reflected in a Joint Statement that was issued by EPA/USDA May 1st. Subsequent to that time EPA determined not to include forestry provisions in the TMDL regulation to be finalized this Summer. I expect EPA to repropose provisions related to forestry later this fall along the lines agreed to in the agreement.
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I want to briefly highlight the aspects of the joint agreement pertinent to agriculture and forestry. Both agencies decided that giving local citizens and State governments the most say in how pollution budgets are established for impaired waterways would have the greatest measure of success. The agreement grants States more flexibility in setting priorities, more time to develop lists of impaired waters, and simplifies listing requirements, dropping a requirement that ''threatened waters'' be listed. States will have 15 years to develop TMDLs for their impaired waters.
Most importantly from the standpoint of agriculture, EPA and USDA agree that voluntary and incentive-based approaches, such as the water quality improvements that farmers make through federal conservation programs or on their own initiative, will be given due credit in the development of TMDLs.
USDA believes the agreement reached with EPA in May is a significant improvement over the August proposal and that it is workable for agriculture and forestry. Clearly though, given the public response on both sides (foresters, loggers, and the environmental community), there is more discussion that needs to take place with the public on forest water quality issues. So, USDA supports EPA's decision not to include the forestry provisions in the TMDL rule to be finalized this Summer, but rather to further engage stakeholders and to repropose the forestry provisions separately later this Fall. USDA will continue to work with EPA as it decides how best to proceed to address the important forestry issue.
Adequate funding of the programs that will help landowners address TMDLs is key to their success. The EPA is currently developing estimates of the overall cost of the TMDL program and the analysis will be available when the final rule is published. USDA agricultural conservation programs are dramatically enhanced by the Farm Safety Net proposal in the fiscal year 2001 budget. The Environmental Quality Incentives Program (EQIP) would be increased from $200 million to $325 million. The Conservation Reserve Program (CRP) would be expanded to 40 million acres. Under our current authority, USDA is increasing CRP continuous sign up incentives by $100 million in fiscal year 2000 and $125 million in each of fiscal years 2001 and 2002. The Wetlands Reserve Program (WRP), which will reach its statutory 975,000 acre cumulative cap in fiscal year 2001, would enroll 250,000 acres annually. Finally, under the President's budget, a new $600 million Conservation Security Program would be funded and will provide annual payments to farmers and ranchers who voluntarily implement various conservation practices, many of which will benefit water quality.
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However, in both House and Senate appropriation bills, a provision has been inserted limiting fiscal year 2001 EQIP funding to $174 million, $151 million less than the President's budget and $26 million below its authorized level. Congress also has not authorized additional funding for WRP, CRP, or the new Conservation Security Program, as requested by the President. As the Congress completes its work on the fiscal year 2001 appropriations bill, we strongly urge Congress to drop the objectionable EQIP provision and fully fund these important programs that can provide State and local partners the tools to successfully build their TMDL programs.
USDA believes outreach, education, and technical assistance to communities will play decisive roles in these efforts to improve water quality. USDA and the EPA believe the final TMDL rules must be fair, clear, and provide farmers with greater certainty. With this in mind, USDA is working diligently with the EPA to achieve these goals.
Mr. Chairman, I thank you for this opportunity to appear before your committee on behalf of USDA. We welcome the opportunity to discuss the issues and respond to your questions.
"The Official Committee record contains additional material here."
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