Segment 3 Of 3 Previous Hearing Segment(2)
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REVIEW OF H.R. 4502, THE WATER POLLUTION PROGRAM IMPROVEMENT ACT OF 2000; AND THE IMPACT OF EPA'S PROPOSED TOTAL MAXIMUM DAILY LOAD RULES ON AGRICULTURE AND SILVICULTURE
WEDNESDAY, JUNE 28, 2000
House of Representatives,
Committee on Agriculture,
Washington, DC.
The committee met, pursuant to notice, at 10:03 a.m., in room 1300, Longworth House Office Building, Hon. Larry Combest (chairman of the committee) presiding.
Present: Representatives Ewing, Goodlatte, Pombo, Canady, Smith, Lucas of Oklahoma, Chenoweth-Hage, Chambliss, Moran, Gutknecht, Walden, Fletcher, Stenholm, Peterson, Minge, Pomeroy, Holden, Baldacci, Berry, and Etheridge.
Staff present: William E. O'Conner, Jr., staff director; Tom Sell, Lance Kotschwar, chief counsel; David Ebersole, David Tenny, Kevin Kramp, Wanda Worsham, Clerk; Callista Bisek, Vernie Hubert, Andy Johnson, and Anne Simmons.
OPENING STATEMENT OF HON. LARRY COMBEST, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
The CHAIRMAN. Good morning. The hearing of the House Agriculture Committee to review EPA's proposed total maximum daily load rules on agriculture and silviculture and H.R. 4502, the Water Pollution Program Improvement Act of 2000 will come to order.
I would mention before opening statements to all of the witnesses and our guests, apparently there will be a number of votes starting quite soon and running unscheduled and uncertain for some period of time. We will try to do this as best we can. We may be notably absent from time to time and will try not to detain any of you longer than necessary.
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I would like to welcome all of you here this morning. I especially want to welcome those on our panel who have traveled long distances to join us.
This hearing comes at a critical juncture in the development of EPA's proposed TMDL rules. These rules have been controversial from the beginning and recent events have only served to raise the level of controversy.
There are three fundamental issues at play in our discussions today. First, according to a report issued last week by the General Accounting Office, there is a substantial uncertainty about whether the cost analysis EPA conducted on its proposed rule meets the requirements of the Unfunded Mandates Reform Act of 1995.
Second, significant questions remain regarding the quality of the science upon which EPA's rules are premised.
Finally, given the unusual procedural course these rules have taken, including in recent days, meetings with a small handful of Washington-based interest groups for the purpose of making substantial last minute changes to the rules, there are significant questions about whether these rules are procedurally flawed beyond repair.
Taken individually, any one of these issues if not adequately resolved by EPA would be good cause for requiring EPA to withdraw its proposed rule and go back to the drawing board. Together, they create a credibility hurdle that appears to be nearly impossible for EPA to clear.
Unless EPA can convince this committee and this Congress that its cost analysis, its process and its science are not fundamentally flawed, the Agency will have no choice but to start over on a new policy, one that is economically justifiable, scientifically sound and procedurally fair.
We have heard from farmers, ranchers, forest landowners, small businesses and local governments from all over the country opposing both the substance of these rules and the process by which they have been developed. The House and Senate have held at least a dozen hearings on these rules and 20 public forums around the country have attracted thousands of concerns, local citizens united in their opposition to these rules in their present form.
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Six separate pieces of legislation have been introduced in the House and Senate to address the problems in these rules, including H.R. 4502 which Mr. Stenholm and I have authored. Nearly half of the members of the House of Representatives, in an impressive display of bipartisan concern, have co-sponsored one or more of these bills. The House has already passed appropriations language requiring the EPA to take a timeout and work through the many issues surrounding its proposed rule. Still, the EPA is determined to stay its present course, confident that it is right and the rest of America is wrong.
At this point, the burden is on EPA to change the strong sentiment against its rules that prevails in Congress and throughout the country. This may take some time to do. In fact, it will probably require EPA to withdraw its rules for a time so that the public and the Congress can have an opportunity to work through the different issues that have been raised in this committee and elsewhere.
I agree that it is important address water quality issues in our country, but it is just as important to address them in a way that the public and the Congress can support. EPA is not there. I sincerely hope that we will hear from the EPA today a desire to take the time necessary to work through our differences. Otherwise, Congress will have no choice but to pursue a legislative solution. Mr. Fox and Mr. Lyons, the ball is squarely in your court.
Mr. Stenholm.
OPENING STATEMENT OF HON. CHARLES W. STENHOLM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. STENHOLM. Thank you, Mr. Chairman, and thank you for holding this timely hearing on a subject of extreme concern to agriculture, the rural communities and ultimately to all Americans.
On August 23, 1999, the EPA formally proposed changes to the total maximum daily load in the national pollution discharge elimination system permits. Since that time, there has been growing skepticism about the wisdom of EPA's approach to these revisions. Representatives of State and local governments, the regulated community, and many environmental groups have all expressed concern about these proposed rule changes.
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During the last couple of months, legitimate concerns have been raised regarding various components of these proposals. Among these concerns are the following: the adequacy of scientific data supporting the rules; questions about EPA's economic analysis; doubts about the timeline for implementation; concern that EPA has exceeded its congressional mandate; and speculation that these proposals might conflict with ongoing State programs, with the unintended consequence of delaying improvements to water quality.
We have also learned that EPA has held secret negotiations with environmental groups, thus excluding certain citizens from full participation in the rulemaking process. This may have fatally compromised the process. It seems that each week brings a new reason to doubt the wisdom of moving forward with these rules.
Mr. Chairman, because of many unanswered questions and our own mutual concerns, you and I introduced, as you pointed out, H.R. 4502, the Water Pollution Program Improvement Act. My years of public service have convinced me that the best way to make good policy is to use sound science and an open process. A democratic nation must convince people, not coerce them. It is to that end that H.R. 4502 would commission a study by the respected National Academy of Science to investigate the adequacy of these proposed rules.
The EPA has clearly not done enough to convince the public that these rules are good policy. Nor has the EPA adequately addressed the technical, financial and scientific issues surrounding the rules. If the EPA really believes these rules are justified, they should welcome this study, accept the modest delay it will cause and use the opportunity to publicly vindicate their policy by building a valuable public consensus.
If the EPA pushes forward with these rules, however, and forces them on the American people without public consensus or solid scientific justification, they should be ready to face strenuous opposition from Congress and elsewhere.
Let me also say how tremendously disappointed I am with the poor leadership the U.S. Department of Agriculture has demonstrated during this entire process. It is clear that USDA has been nothing more than a facilitator of the EPA's ill-conceived plans. USDA has the scientific and technical expertise to review the actions of the EPA and help guide them towards a reasonable solution that may actually work in the field.
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This would have been especially important given the limitations on technical and financial assistance available at the Federal and State levels. Many times over the years, I have heard that we need an independent agency within USDA that could stand up to EPA and serve as an equal in policy discussions. It now appears that some in the Agency attempted to provide such independence and credibility. However, their work was stifled by others in the Department who were more interested in helping EPA implement their agenda regardless of what the science and financial analyses demonstrated.
This has led many to question whether the Department is weighing the interest of all of those involved in protecting the Nation's soil and water quality.
Mr. Chairman, I look forward to this hearing and to the excellent panel of witnesses you have assembled. I hope today's information will be both heard and heeded by everyone involved in this process. Perhaps we can then develop a policy that will actually enhance our Nation's water quality rather than simply undermine public confidence in our Nation's Federal environmental agency.
I do not understand the thinking by those in the EPA and some within the USDA to exclude all of the parties from participating. That does more harm to the ultimate end goal which we all share. That is what I hope this hearing today will provide us and you, the opportunity to sit at the same table, to hear all of the views expressed and then to respond to the questions this committee certainly will have of you. At the end of the day, I hope to then have a very successful, new guideline for where to head on this very important issue.
The CHAIRMAN. Thank you, Mr. Stenholm.
We will not start the witness testimony until we return from the vote. The vote will run until 10:29 a.m., so that gives us a few minutes and then we will run over and vote and come back.
A bit out of order with the indulgence of the committee, I would recognize Mr. Holden.
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OPENING STATEMENT OF HON. TIM HOLDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. HOLDEN. Thank you.
I would like to thank you for convening this very important hearing today on the total maximum daily load issue, an issue of great concern to Congress and most certainly to our constituents. I am anxious to hear the testimony of the witnesses, so I will keep my comments very brief.
I simply would like to take this opportunity to convey the comments and the sentiment I have been hearing from my constituents thus far on EPA's proposed rules for total maximum daily load. Two weeks ago, on June 15, about 200 owners of farms and forestland showed up at the Burkes County Agricultural Center in my congressional district and were looking forward to a meeting with the representative from EPA to share their concerns on its TMDL proposal. These landowners are very concerned with the potentially expensive costs they might be forced to incur should EPA finalize its TMDL regulations as currently proposed.
Unfortunately, the EPA representative scheduled to attend the meeting did not show up and to my knowledge, there was no courtesy phone call placed to say why he or she was unable to show up. I believe this snub demonstrates an arrogance on the part of EPA and a complete lack of concern for those individuals who will be most affected by its misguided policy.
In the absence of any representation at the meeting from EPA, what was to be a debate on the TMDL proposal, quickly turned into a rally of opponents to the TMDL measure. Audience members present at the meeting were urged to sign and send prewritten letters to their Senators, Congressmen and to the EPA. Since no one was present to collect the letters for EPA, the meeting organizers asked me to make sure these letters made their way to the Agency.
Mr. Fox, I have here in my possession, 600 letters, 200 from my congressional district and 400 from other parts of the Commonwealth of Pennsylvania. I would appreciate it if after the hearing someone could pick them up and see they get to Administrator Browner so my constituents and other Pennsylvanians can have their concerns addressed.
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Since August 1999 when EPA announced its proposed new regulations in the TMDL matter, stakeholder after stakeholder has raised significant concerns. Most recently, the U.S. Conference of Mayors adopted a resolution on June 14, 2000 calling on EPA to withdraw its rule. The GAO tells us that there are concerns with compliance with the 1995 Unfunded Mandates Act. Stakeholder after stakeholder also say that this rule is bad, yet EPA still trudges along trying to make patchwork fixes to its rule in an attempt to rally support.
In recent weeks, EPA has been meeting closed door sessions to negotiate, make concessions and try to build up some sort of consensus on its proposal. It has dropped forestry from its proposal try to win support from that community. EPA's recognition of the flaws in the forestry permitting provisions and commitment to withdraw them is a step in the right direction. There is no reason, and I repeat, no reason for EPA to repropose the forestry provisions has it has suggested it still might do because State-based programs to improve water quality and silviculture have been proven effective.
EPA has also met with environmental organizations to try to win their support. Despite its eleventh hour changes, EPA's proposal still has major problems and major critics. States, municipalities, agriculture, manufacturing and forestry interests are still expressing concerns with the remaining TMDL rules.
In light of these criticisms, along with continued opposition from Congress, EPA should quit trying to put patches on its fundamentally flawed TMDL proposals and instead withdraw them altogether. I urge EPA to go back to the drawing board, work in a good faith effort with all stakeholders to negotiate a common sense, scientific-based proposal that we all can agree on. Anything less is inconsistent to the will of this committee and to the will of the Congress.
Thank you, Mr. Chairman.
The CHAIRMAN. Are there other members who might wish to make comments? Mr. Berry.
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OPENING STATEMENT OF HON. MARION BERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. BERRY. Thank you, Mr. Chairman.
I want to thank you and the ranking member, Mr. Stenholm, for your leadership in this matter and the subcommittee chairman, Mr. Goodlatte, for holding the hearings that he held in Arkansas last week.
I couldn't help but notice as the distinguished ranking member from Texas was making his remarks, and I don't remember exactly how you said it, Mr. Stenholm, but you mentioned that the USDA was basically a pawn in the implementation of EPA's efforts.
As you said that, Mr. Lyons and Mr. Fox laughed and giggled and kind of punched each other like it was funny. Let me assure you, gentlemen, it is not funny what you are trying to do to America's farmers. You should be ashamed of yourselves for what you did and what you are trying to do.
EPA's proposed TMDL rule threatens producers of every commodity, not just those in the forestry industry. Forestry complained about the rule the most but we must realize that these rules involve all sectors of agriculture. The reason we are here today is not only because of the threat this rule poses to agriculture, but because of the threat EPA's decisionmaking process poses for the future of this country by failing to use sound science and a transparent process.
EPA has demonstrated with this TMDL rule and other rules that they do not have any concern whatsoever for sound science or common sense. They continually set forth rules which have no scientific or practical basis.
Agriculture has been down this road many times. Just the other day I found out about a new set of rules regulating agriculture that EPA is proposing. EPA thinks that it would be a good idea if every fish farmer in the country filled out a survey—I have a copy of it here, quite a thick thing—and over half of it is asking for financial information, net income, assets, revenue, expenses. This information would have nothing to do with water quality, absolutely nothing.
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EPA believes that detailed financial information should be used for water quality purposes. However, EPA does not believe that sound science plays a part in this. I had this discussion with Administrator Browner this week. What does financial condition have to do with water quality? I would like to hear an answer to that before we leave here today.
I applaud the efforts of many on this committee to force EPA to base their decisions on sound science. I hope today's hearing will again highlight the many problems with EPA's TMDL rule and the decisionmaking process. Thank you.
The CHAIRMAN. Any other statements by Members will be accepted at his time, and I would also ask that a copy of the bill H.R. 4502 be included at this point.
[The prepared statements of Members and H.R. 4502 follows:]
PREPARED STATEMENT OF HON. BILL BARRETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA
Even after 10 years in Congress, it continues to amaze me that the same goal can have diametrically opposed opinions on how to achieve it. All of agriculture supports the goal of water that can be used for swimming, fishing, recreation, and is healthy. I think that's the goal of the Environmental Protection Agency. But after reviewing EPA's proposed regulation on total maximum daily loads, I've got to wonder if we are after the same thing after all.
My overarching concern is that the TMDL proposal will throw out agriculture's nearly 80 years of voluntary, incentive-based environmental successes by creating a new comprehensive regulatory regime on top of existing state programs. This could subject farmers, ranchers, rural residents, and the forestry industry to a whole host of new regulations and disrupt the process by which nonpoint source pollution concerns have traditionally been addressed.
The findings of the General Accounting Office's investigation into EPA's analysis that formed the basis of the proposed regulation and EPA's compliance with the Unfunded Mandates Reform Act of 1995 is troubling. GAO found fundamental flaws in the baseline used by EPA to determine the estimated costs for the regulation, and that additional analysis is needed under the unfunded mandates law.
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The questions raised by the National Academy of Sciences on EPA's commitment to and use of sound science is troubling. EPA has been given the responsibility to protect the environment. Without a scientific basis for doing so or when science is interpreted for political purposes, no one wins, especially not the environment. The National Association of State Foresters and the Society of American Foresters highly critical review of EPA data on the quality of specific bodies of waters reinforces this concern.
TMDLs are not bad policy, and it's probably time to update the regulation. However, this rule has the potential to undermine EPA's credibility and unleash a rash of lawsuits, which will waste money and not do anything for water quality. I strongly believe EPA should start over with the TMDL rule. A TMDL policy based on a proven voluntary, incentive-based approach that is widely supported should be pursued. Until such time, I continue to support (and have cosponsored) H.R. 4502 to require the NAS to review the science behind the issues and support efforts to slow down EPA.
PREPARED STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO
Thank you Mr. Chairman for holding this important hearing about the Environmental Protection Agency's proposed total maximum daily load rules on agriculture and silviculture. My constituents tell me TMDL stands for ''Too Many Damn Lawyers'' so I'm particularly curious today to learn if these regulations do benefit anyone outside of the legal profession.
Mr. Chairman, on a more serious note, I commend your leadership and outstanding work on this issue. Your bill, H.R. 4502, the Water Pollution Program Improvement Act of 2000 (of which I am a cosponsor), demonstrates your commitment. I would also like to thank our witnesses for being here today, and I look forward to hearing their testimony on this very important subject.
First, let me say that I am very concerned that the Environmental Protection Agency is once again attempting to expand its power as it attempts to finalize rules related to TMDL and National Pollutant Discharge Elimination System programs.
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The considerable controversy over the accelerated approach EPA has taken to finalize its rules, as well as the scientific, economic and political impacts associated with them have been apparent to Idaho's farmers, ranchers and landowners. After careful review, these proposals are far too stringent and costly and will impose a real burden on managing decisions. Mr. Chairman, like many of my colleagues, I urge the EPA to immediately withdraw its rules.
It's no secret, Mr. Chairman, that the EPA is using bogus arguments once again to undermine our State's rights. Although I do not know the administration's motive, I can tell you that my constituents are very, very concerned with this effort by the Federal Government to gain more control over State water, and thus over every facet of Western life.
I also find it puzzling that the Federal Government has intruded on State control of water, since the citizens and the State government of Idaho have worked long and hard to improve water quality in our rivers and streams. In fact, Idaho's rivers and streams are one of our greatest attractions. They contain world-renowned trout and bass fisheries, support whitewater rafting and powerboating, and are one of the gems in Idaho's treasury.
In addition, the State of Idaho has established a locally-driven process to address and improve water quality in Idaho. By establishing Basin Advisory Groups and a Watershed Advisory Group, Idaho has drawn on local expertise to find win-win solutions concerning water quality. In southwestern Idaho, a BAG has worked hard to improve water quality and lessen pollution. In northern Idaho, a BAG has worked hard to address heavy-metals contamination from a century of mining in the area.
In both cases, Idaho's people are leading the way to find common-sense solutions to water quality issues at a local level that can be successfully implemented on the ground. Frankly, the EPA should butt out.
However, I have become increasingly concerned that the EPA is heading in the opposite direction—attempting to gain more and more control over water issues in Idaho. That's why I am so pleased that the chairman agreed to hold this hearing today, so that Congress may take a comprehensive look at water quality issues, and find the best way to address any agriculture and silviculture pollution that may exist.
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As we have done in Idaho, I suggest we look for local solutions, empower local people, respect State sovereignty over water, and limit the intrusive Federal govemment. I believe Chairman Combest's legislation does many of these things, and I am proud to cosponsor it.
Let me conclude by pointing out the very powerful words of our current Supreme Court Chief Justice, William Rehnquist: ''To take from the legislatures of the various States and territories, the control of (water) at the present time would be something less than suicidal * * * If the appropriation and use were not under the provisions of the State law, the utmost confusion would prevail.''
These words, given in the 1978 decision United States v. California, were only one of a long line of opinions from the highest court affirming an exclusive power belonging to the States—to control the allocation and ownership of its water. Were this not so, States such as Idaho simply could not survive. I look forward to hearing today how we can even improve on this effort.
Thank you, Mr. Chairman.
PREPARED STATEMENT OF HON. DEBBIE STABENOW, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Chairman Combest and Ranking Member Stenholm, thank you for bringing the Agriculture Committee together to discuss an issue that has an impact on farms across the Nation: the U.S. Environmental Protection Agency's Total Maximum Daily Load rules. According to the Clean Water Act, States must establish TMDLs for each pollutant entering an impaired waterway. The recent rules proposed by the EPA instruct States how to draft TMDLs and establish a time-line for completion. The rules also pertain to the issuance of the National Pollutant Discharge Elimination System permits and change EPA's current interpretation of regarding silvicultural activities as non-point source pollution.
I understand this hearing will address several important issues: the EPA's cost analysis of the TMDL rules in accordance of the Unfunded Mandates Reform Act of 1995, the integrity of EPA's scientific evidence, the process used by EPA to change the proposed rules prior to submitting them to OMB, and the policy implications of the rules submitted by EPA to the OMB. At today's hearing we will also consider H.R. 4502, the Water Pollution Program Improvement Act of 2000, introduced by Chairman Combest.
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I look forward to hearing today's testimony from the witnesses and I am ready to work with my colleagues on the committee to address this issue. I have heard from farmers from all over the State of Michigan who are very concerned about the impact of EPA's proposed rules on their operations and on their livelihood.
"The Official Committee record contains additional material here."
The CHAIRMAN. The committee will take a brief recess and will return as soon as possible.
[Recess.]
The CHAIRMAN. We will reconvene.
The gentleman from Arkansas.
Mr. BERRY. I would request that the witnesses be sworn in.
The CHAIRMAN. This committee does not normally require witnesses before it to be sworn. I have had several members of the committee request that before we proceed any further with today's hearing, that we swear the administration's witnesses in order to ensure the testimony is truthful.
Also having chaired other committees in which we swore witnesses, the opportunity for counsel is provided, so I would give the witnesses the opportunity to either accept the swearing in or be dismissed.
Mr. Lyons?
Mr. LYONS. Just to clarify, Mr. Chairman. You are going to swear the administration witnesses but not the other panelists, is that correct?
The CHAIRMAN. If the other panelists have no problem with being sworn, we will swear them as well.
Mr. LYONS. I was just trying to clarify because I have no problem with being sworn.
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The CHAIRMAN. Mr. Fox.
Mr. FOX. Mr. Chairman, every testimony I have given to this committee was 100 percent truthful. I will do that today and have no problems being sworn.
The CHAIRMAN. Are the other witnesses willing to be sworn?
If you would all please stand and raise your right hand.
Do you swear or affirm that the testimony that you are about to give will be the truth and nothing but the truth?
[Chorus of ayes.]
The CHAIRMAN. Thank you very much. Let the record show that all witnesses did in fact affirm and are sworn.
With that, we will begin the testimony. The panel of witnesses today consists of: Mr. James R. Lyons, Under Secretary, Natural Resources and Environment, U.S. Department of Agriculture; Mr. J. Charles Fox, Assistant Administrator for Water, U.S. Environmental Protection Agency; Mr. Peter F. Guerrero, Director, Environmental Protection Issues, U.S. General Accounting Office; Mr. Steve Moyer, Trout Unlimited, Arlington, VA; Mr. John Barrett, cotton producer, Edroy, TX; Mr. George Ice, principal scientist, National Council for Air and Stream Improvement, Corvallis, OR; and Mr. Derek Winstanley, chief, Illinois State Water Survey, Champaign, IL.
Mr. Lyons, you may begin.
TESTIMONY OF JAMES R. LYONS, UNDER SECRETARY, NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Mr. LYONS. Thank you, Mr. Chairman. I appreciate the opportunity to appear before the committee today to address the issues associated with clean water and the TMDL rule. It is a pleasure to be back before my former committee.
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I feel compelled, Mr. Chairman, to divert from my prepared remarks and to address some of the issues that were raised in opening statements by several members, if I may. I would ask that my entire statement be entered in the record.
The CHAIRMAN. All statements will be entered in the record.
Mr. LYONS. Thank you, Mr. Chairman.
First of all, I want to clarify for Congressman Berry, who offered a comment about my comment to Assistant Administrator Fox, I simply leaned over to Mr. Fox to ask if he was comforted by the fact that EPA wasn't going to be the only entity vilified in the hearing today. He took some comfort in that, I think.
Mr. BERRY. I have to tell you, Mr. Lyons, I didn't take any comfort in it.
Mr. LYONS. Congressman, let me just tell you that we take these issues very seriously. I think it is important that we deal with issues of clean water, that we deal with facts, and that we are straightforward, all of us, in how we attempt to serve the American people, which I know you are doing and I am trying to do as well.
I apologize if it was inappropriate for me to make a comment in the context of Mr. Stenholm's opening remarks, and I apologize to him if that disrupted him.
I have helped prepare hearings in this committee before and I kind of know how this is laid out, so I just offered a comment to Mr. Fox, and I apologize for that.
Mr. BERRY. I would suggest maybe, Mr. Lyons, that you have appeared before the committee too many times.
Mr. LYONS. That may be the case, Congressman, but I am pleased to be here today.
Congressman Berry and Mr. Stenholm raised concerns about USDA's role in TMDLs, questioned USDA's leadership in addressing issues associated with clean water and other environmental concerns; talked about lack of leadership and a failure to stand up to EPA.
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Since, as you know, Mr. Chairman, issues associated with natural resources in the environment fall within my mission area, I feel compelled to direct those issues directly.
First of all, I would assert that USDA is providing more leadership in addressing issues associated with clean water, natural resources in the environment than has been demonstrated in the department for some time. I am sure you have a difference of opinion about that.
In the context of clean water, USDA was a partner with the Environmental Protection Agency in the development of the President's Clean Water Action Plan which laid out an agenda to deal with the remaining difficult issues that are associated with addressing clean water concerns that continue to plague many areas, rural and urban, in the United States.
We worked directly and closely with EPA in the development of our AFO/KFO strategy to address an issue which has been the subject of hearings by this committee, both here in Washington and in the field. It is certainly a concern among producers and a concern among rural residents. We have worked very closely in addressing the TMDL rule.
I would suggest to you that you not confuse a working relationship with collusion. That is not what we are about. We have a responsibility to attempt to address these issues. My responsibility to represent agriculture and the larger interests in the American people in addressing what I know we all share and believe is a concern. That is the health of America's waters.
One product of the dialog that we have had over time is a recognition on the part of the Environmental Protection Agency stated in the Clean Water Action Plan and restated in the context of the TMDL rules that voluntary, incentive-based approaches to deal with non-point source pollution are in fact the way to go. Some, particularly in the environmental community, feel that is a major concession on the part of EPA and have challenged them for their desire to recognize and work with us on these issues. Nevertheless, we feel it is recognition that significant progress has been made in using these approaches.
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American agriculture has made a significant contribution in attempting to address America's water quality concerns but yet more is needed. More work is essential to continue to make improvements to deal with the difficult water quality issues that face this Nation.
EPA also recognizes that cleanup requires local understanding, local solutions, not solutions that can be implemented simply from Washington, DC, contrary to the way the TMDL rule and other issues we have been involved in are characterized, solutions that need to be formulated at the local level in the context of larger water quality strategies.
I think we have to deal with the facts. The facts are that 20,000 impaired water bodies remain in the United States. There may be questions about these data and I understand some of the witnesses today will raise some questions. I would remind the committee that these data were generated by State agencies. We at USDA are not in the business of questioning State agencies as they generate this information.
I would suggest to you that rather than questioning the data, we should work together on attempting to minimize the impacts, however large or small, that agriculture and forestry may be having on water quality in the United States. I can't help but wonder if anyone in this room questions that silviculture and agriculture can have and in fact do have at times an impact on water quality. I think we all accept that as a given. The question is, what do we do about it? The question is how do we work together to formulate solutions to address these concerns?
The other point I would make is I doubt anyone in this room would question that voluntary, incentive-based approaches to dealing with these issues is not the appropriate way to go. That is an agreement that we have reached working with EPA and it certainly is the foundation for what we have attempted to do in both the AFO/KFO strategy, in the context of the TMDL rule and in the larger context of the Clean Water Action Plan.
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This committee has generated many tools, starting with the 1985 farm bill, the 1990 and 1996 farm bills that have been critical in our efforts to address water quality concerns, authorizing programs like CRP and CREP, EQIP, the Wildlife Habitat Incentive Program, WRP and these are essential tools for addressing the issues associated with the remaining challenge of nonpoint pollution.
These tools provide flexibility, they provide the foundation for assisting producers in dealing with the issues associated with clean water. We think it is essential that these tools be adequately funded to allow us to proceed to address these remaining water quality concerns.
I want to clarify that in working with EPA in focusing on the use of voluntary, incentive-based approaches to dealing with nonpoint source concerns for silviculture and for agriculture, we made a great deal of progress. You are all aware that EPA has agreed to drop provisions in their TMDL rule related to silviculture and to look at those issues later. We concur in EPA's decision to do so but I would make this point.
In the discussions we had from the point that EPA proposed its rule to the point at which we reached an agreement on a framework for dealing with silviculture, that framework focused again on voluntary approaches to doing business. It emphasized the development of best management practices on a state-by-state basis. In fact, it followed the lead that many States have already structured, States like Oregon and Washington, to develop local solutions based on best management practices fit to the conditions related to the forestry activities in their State or their part of the country.
We agreed that States should have the lead in developing their own best management practices, that EPA should only get involved if a State elected not to undertake such action and not to develop a set of BMPs that would clearly deal with water quality concerns. It seems to me that is the kind of framework that this committee has advocated, at least since I have been associated with the committee, again, focused on a voluntary approach.
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The only instance in the agreement that we reached where a permit might be required would be in a situation where in an impaired water body, an entity engaging in silvicultural activities was clearly impacting the water resource, ignoring the BMP requirements, and putting other landowners, other beneficiaries of water quality, others in that watershed at risk.
It seems to me after decades of attempting to deal with nonpoint source concerns, it is not unreasonable to come up with an approach to deal with the worse case scenarios, those bad actors, and that clearly in our minds would be the exception to the rule.
With regard to other provisions of the TMDL rule that we agreed to in our working relationship, EPA agreed to grant the States more flexibility in setting priorities, to have more time to develop lists of impaired waters and to simplify listing requirements. They dropped a requirement that threatened waters be listed. The States would have up to 15 years to develop TMDLs for their impaired waters. Most importantly from the standpoint of agriculture, EPA and the USDA agreed that voluntary incentive-based approaches such as water quality improvements that farmers make through the Federal Conservation Programs I have already mentioned, would be given due credit in developing TMDLs.
I want to emphasize a point in closing, Mr. Chairman, that I think gets lost in this debate. The Department of Agriculture has committed to an approach that does emphasize incentive-based voluntary approaches. In fact, the Secretary testified before the U.S. Senate on this issue earlier this year and said the following:
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. Third, it should allow for reasonable time frames for planning and implementation. We have held true to those commitments. We have worked with EPA to secure those commitments and to assure that we can use systems and approaches that have been proven to work.
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The critical question is whether or not these programs that are critical to implementing a voluntary, incentive-based approach to dealing with nonpoint source pollution are going to be funded. The administration presented proposals in our 2001 budget to fund the EQIP Program at $325 million and instead, there is a cap on funding below the level of funding authorized by this Agriculture Committee of $200 million.
We suggested expansion of the CRP and also recommended additional funding for WRP in the creation of a new program and conservation security program to provide additional payments to producers who engage in conservation practices.
We can debate the issues of nonpoint source pollution and clean water all we want, Mr. Chairman, but the fact of the matter is if we are going to follow the path of voluntary, incentive-based approaches to dealing with nonpoint source pollution for agriculture and forestry, which I believe we all agree is the proper way to go, then we can't hold out a hollow promise to America's farmers and ranchers and foresters, a promise of support to implement those strategies and no funding to do so.
If we are going to attack this problem in a non-regulatory way, which we all agree we should, then we have to commit to provide the resources to do so. I question anyone who would disagree with that statement. Heretofore, we simply have not done that, Mr. Chairman, and it is not an issue of this committee necessarily but certainly an issue associated with the appropriations and our ability to fund these programs.
The CHAIRMAN. We have been fairly lenient with the time but we are going to have to take a brief recess for the members to vote.
[Recess.]
The CHAIRMAN. The committee will resume.
Mr. Fox?
Mr. LYONS. Mr. Chairman, if I could make just one last point which I was trying to do before we left. I actually want to make three.
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One is I recognize, as evidenced by the statements made this morning, that in many respects TMDL is the new four-letter word in rural America. I think we have a responsibility to help clarify what has been proposed, what changes have been made in the context of EPA's proposal and to help come up with an approach that will adequately address the nonpoint source issues that confront farmers, ranches and America's private forest landowners. The question is, if not this approach, then what?
I would also argue that we should not get into a debate over how big or how little the problems are, but rather what we are going to do to deal with them.
Second, the key to success is funding. This Congress and this committee has authorized some excellent conservation programs, keys to success in dealing with nonpoint source pollution in rural America. Unfortunately this Congress has not supported conservation adequately and I fear that America's farmers, ranchers and private forestland owners will suffer the consequences of not being able to secure the technical assistance and support they need to deal with the nonpoint issues that are before them.
Finally, I want to emphasize that in the context of questions or concerns about process, we have attempted in working with EPA, to be up front and open about our concerns, about agriculture's concerns. I know a statement was made about an alleged meeting EPA had with the environmental community. In the interest of full disclosure, I want to make clear that we have convened meetings with the agriculture community and the forestry community as well. In fact, on June 7, we had a meeting with representatives of the agriculture community to talk about issues related to water quality.
This is an ongoing and continuing dialog and we think it is important we visit with all interested parties, all potentially affected interests so we can come to a strategy that makes sense for agriculture, for the American public and will ensure continued improvement in the quality of the waters of the United States.
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Thank you.
[The prepared statement of Mr. Lyons appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Fox.
TESTIMONY OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. FOX. Thank you, Mr. Chairman, for the opportunity to be here today. I would like to also extend a special thank you to Jim Lyons and the Department of Agriculture and their staff for their leadership on behalf of some of the water quality problems that we are facing in this country.
I know that all members of this committee want clean water for the people of this country for drinking, fishing and swimming. However, some seem to question the seriousness that I bring to my job of public service. In fact, today's hearing is quite timely because we are presenting today our latest report to Congress on water quality throughout the Nation. This report is based on data collected by the States and shows that we have made tremendous progress over the years in improving water quality but it also shows we still have a ways to go to achieving the goals we all share.
The report concludes that roughly 40 percent of the waters assessed by the States still do not meet their goals for fishing, swimming or drinking. It also concludes that polluted runoff from urban and agricultural lands is the single most important factor contributing to water quality impairments throughout the Nation. Gentlemen, we have a serious problem on our hands and the people of this country have made it very clear that they expect us to respond to this problem.
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Turning to the specifics of today's hearing, I have done a lot of listening over the past 2 years to various ideas about how to improve our TMDL program. Like you, I have traveled extensively, I have heard many good ideas. My written testimony describes in some detail the work we have done in recent months to address many of the important issues that have been raised.
My written testimony also describes that a recent Federal court confirmed EPA's long standing view that nonpoint sources of water pollution, including agricultural sources, be accounted for in the development of TMDLs.
Let me make an emphatic statement that including nonpoint sources in a TMDL does not mean that they receive a Clean Water Act permit, an issue that has been the subject of a good deal of attention before this committee.
The one issue that we received most of the 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. Although the revised approach described in the EPA/USDA joint statement is a significant improvement over the original proposal from last August, EPA believes there is a need to get further ideas for improvements.
As you know, I announced in a June 8 letter that EPA will not include forestry provisions in the TMDL regulations to be finalized early this summer. Instead, we intend to work closely with USDA and engage stakeholders extensively in reviewing forestry options and the Agency will decide sometime next year whether and how to best proceed to address this important issue.
The administration strongly opposes H.R. 4502 because it would delay final TMDL regulations by at least 3 years and perhaps much longer. The bill would prevent the finalization of TMDL regulations until the completion of a study by the National Academy of Sciences. Enactment of this proposal could result in the effective shutdown 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.
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Sadly, Congress would be telling thousands of communities across the country that are eager to get to work in restoring over 20,000 polluted waters to stand down, to pack up their clean water plans and put them into a deep freeze for the foreseeable future while a panel of scientists meets in Washington behind closed doors for almost 2 years to write a report.
I have appeared before various congressional committees probably more than 30 times in my 18 years of public service. The frustration that some of you heard in my last testimony before the subcommittee stems from the gross misinformation that I believe has been associated with our TMDL proposal. I believe these types of mischaracterizations do a disservice to the interest of the American public.
I consistently hear from critics of the TMDL Program that is more of the top down, command and control, one size fits all approach to environmental protection. In fact, the TMDL Program offers a dramatic vision of a new approach to clean water. It is designed to attain water quality goals that the States set and to use measures that are tailored to fit each specific water body rather than imposing a nationally-applicable requirement.
It identifies needed pollution reductions based on input from the grassroots water body level, rather than with a single, national regulatory answer. It builds on the successful models of the Great Lakes, the Chesapeake Bay and the Potomac River just a few miles from this hearing room. I truly believe that it offers a flexible, common sense solution to the American people who are very interested in accelerating the progress towards the goals we all share.
In closing, I would like to respond to some of the comments made in opening statements. First, in no way have there been any secret negotiations with environmentalists. Everything we have done, we have maintained an integrity to this process. All of our meetings, including meetings I have had with members of this committee, are a part of the docket. We would be happy to talk about that in more detail later.
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Second, a resolution passed by the Conference of Mayors frankly was mischaracterized. That resolution specifically called on Congress not to supersede EPA's rulemaking process. That resolution asked us to modify our TMDL proposal and to withdraw it if we were not going to make those modifications, and we are working diligently to make some of the modifications that the mayors are interested in.
Finally, I would be happy to talk when Mr. Berry returns about our fish farm regulation and why we are interested in some economic information.
Thank you.
[The prepared statement of Mr. Fox appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Guerrero.
TESTIMONY OF PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION ISSUES, U.S. GENERAL ACCOUNTING OFFICE
Mr. GUERRERO. Thank you.
As you indicated, we will submit our full statement for the record.
We are pleased to be here today to discuss our analysis of the economic and compliance issues associated with EPA's proposal. The TMDL Program is intended to ensure that the Nation's waters meet water quality standards. They were first required by the Clean Air Act and EPA issued regulations governing the development of TMDLs in 1985 but did little to ensure that States enforce them.
In recent years, lawsuits alleging inaction by EPA and the States have spurred increased attention to the development of TMDLs by imposing judicial deadlines on some States. Nonetheless, only about 1,300 up to 40,000 needed TMDLs have been approved as of fiscal 1999.
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EPA's TMDL proposal is actually comprised of two parts. The first part would add requirements to clarify and materially strengthen how waters requiring TMDLs are identified and would provide more specific requirements as to how they are developed.
Specifically, the proposal would include requirements for implementation plans and other provisions intended to assure that pollution reductions in a TMDL will be implemented and water quality standards attained and maintained.
The second part of the regulation or the NPDES part would revise EPA's program that controls the discharge of pollutants from point sources. These revisions would expand EPA's authority to issue permits under certain circumstances to control pollution from certain activities that have generally been treated as nonpoint sources. These revisions are intended to help States and EPA in developing and implementing TMDLs and hence were issued at the same time as the TMDL proposal.
Certain statutes govern Federal rulemaking and require EPA to evaluate the economic impacts of its proposed regulations such as these two proposals. Specifically, the Reg Flex Act requires the Agency to prepare an initial regulatory flexibility analysis if it determines that a proposed regulation will have a significant economic impact on a substantial number of small entities.
In addition, if the Agency determines that a proposed regulation may result in annual expenditures of $100 million or more by State and local governments or the private sector, the Unfunded Mandates Act requires a more detailed analysis of the regulation's costs, benefits and alternatives.
On the basis of its economic analysis, EPA concluded that neither proposed regulation would result in expenditures in excess of $100 million in any one year. Therefore, it did not conduct a more detailed analysis under the Unfunded Mandates Act.
With respect to Reg Flex, EPA determined that because neither proposed regulation directly regulated small entities, neither would have a significant impact on a substantial number of small entities.
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Recently we were asked by House Transportation and Infrastructure Committee to look at two things, the reasonableness of EPA's determination that the Unfunded Mandates Act and the Regulatory Flexibility Act did or did not apply and second, the reasonableness of their economic analysis. In short, we found the following.
Limitations with EPA's economic analysis of the proposed regulations for the TMDL and NPDES programs raised questions about their reasonableness and about the determinations that EPA based on them. Of particular consequence, EPA's analyses were heavily influenced by a number of key assumptions. Among the most important of these assumptions was that States are essentially in full compliance with current TMDL regulations or will be as a result of existing statutory and regulatory requirements.
Therefore, EPA included in its estimate only the cost that would result from the new requirements and not the cost of doing TMDLs generally. However, compliance with existing TMDL regulations has been problematic, as I indicated earlier, and future compliance in the absence of the proposed regulation is uncertain. We found similar limitations with key baseline assumptions that affect cost estimates associated with the proposed NPDES portion of the regulation.
Another key assumption that we questioned was EPA's reliance on data known to be a limited quality. For example, our recent report on water quality data noted that only a small percentage of U.S. waters have been fully assessed and less than half the States have a majority of the data they need to determine whether they should list those waters as impaired. Of even greater significance, only three States have the majority of data they need to develop TMDLs for nonpoint sources.
As a result of these questionable assumptions about the extent of compliance and the availability of data, EPA's cost estimates are subject to substantial uncertainty. In circumstances like this, it would have been appropriate for EPA to assess the effect of different assumptions on their estimates. Had EPA done so, we believe they would like have produced the range of possible costs exceeding those in their analysis.
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Given the uncertainty surrounding EPA's cost estimates, we also disagreed with EPA that the Agency's analysis adequately supported its determination under the Unfunded Mandates Reform Act, that a more detailed analysis of cost benefits and alternatives were not needed for either of the proposed regulations.
However, in the case of the requirements for additional analysis under the Regulatory Flexibility Act, it felt its proposed revisions to both regulations do not directly regulate small entities, additional analyses were not required.
In conclusion, our major disagreement with EPA regarding its economic analysis was with its assumption of full compliance, the effect of which was to exclude any costs to be incurred by States that have yet to meet the requirements of existing programs. In excluding these costs, we believe EPA has understated the cost of implementing the proposed regulations.
However, the larger issue is that regardless of whether one attributes these costs to develop and implement TMDLs to the existing or to the proposed regulations, an indisputable number of facts remain. The cost to develop and implement TMDLs will be substantial.
In addition, as we recently reported, States need more comprehensive data on water quality to both ensure that they adequately identify impaired waters and to develop the TMDLs themselves.
This concludes my statement. I would be pleased to answer any questions at the end of the panel.
[The prepared statement of Mr. Guerrero appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Moyer.
TESTIMONY OF STEVE MOYER, TROUT UNLIMITED
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Mr. MOYER. Thank you for having me here today.
I am Steve Moyer and I am in charge of the conservation programs of Trout Unlimited.
Trout Unlimited is a nonprofit organization whose mission is to conserve, protect and restore North America's cold water fisheries and the watersheds on which they depend. TU has about 125,000 members in the United States.
To summarize, TU is opposed to any delay in the implementation of the proposed revisions to the regulations governing the TMDL Program and therefore, opposes H.R. 4502 as currently drafted because of the bill's delaying provision. TU also opposes the TMDL rule delay rider now included in the House's VA/HUD/EPA appropriations bill for fiscal year 2001.
Instead, we urge the committee to support funding increases through the appropriations process for implementation of the TMDL Program, section 319, Nonpoint Pollution Program and the farm bill conservation programs.
We believe the committee members share with the vast majority of the American people a strong desire to see the promises of the Clean Water Act fulfilled, to achieve fishable, swimmable waters throughout the Nation and to restore and maintain the integrity of the Nation's waters.
Although we have come far toward these goals, we have got a long way to go and getting a grip on nonpoint source pollution is surely the greatest challenge that we face. TU has put a lot of effort into working with landowners, local, State and Federal agencies to prevent nonpoint source pollution, to restore trout and salmon resources in some of the Nation's great trout and salmon rivers and streams.
We and our chapters have raised hundreds of thousands of dollars and spent thousands of hours of volunteer time to this end. We understand the water quality challenges that lie before us because we are out there on the ground right now trying to address them.
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Therefore, we support full and effective implementation of the TMDL Program. We also support the EPA proposal because we think it will further implementation of the TMDL Program and do what the program was supposed to do all along, clean up the Nation's polluted waters.
The proposed regulations do not create a new program. Rather, they represent an effort to provide a more manageable and effective framework for the implementation of a program that has been in the Clean Water Act since 1972. The proposed regulations don't impose any significant new burdens on the States or create new regulatory mandates. I think that is a key point, that there is no new mandates set here. We are working on one that was set about 30 years ago and we haven't gotten very far with them.
H.R. 4502 provides two specific justifications for delaying implementation of the new regulation and one is the burden on States in complying with the rules and two, the lack of adequate data for implementing the program. We don't think either of these concerns justify delaying the new proposal.
First, regarding the burden on States and others, H.R. 4502 points to the claims made by some that they don't have the resources to implement the proposed regulations and section 4 would delay implementation of the new regulations until completion of a National Academy study that would, among other things, examine the cost and the alternatives to the TMDL Program.
Just to be clear, there is nothing new about the mandate and the burden. I just want to emphasize that point. The statutory requirements for TMDLs were included in the original Clean Water Act and Congress included these provisions largely at the request of the States to serve as a back stop when the Act's technology-based programs might prove inadequate to achieve the Act's goals of fishable and swimmable waters.
The new regulations are only trying to build on a program that is now about 30 years old. So the current impression of a rush to complete the 303(d) list of impaired waters and TMDLs are part and product of the fact that the States and EPA have ignored the requirements of these provisions until quite recently. The fact that the TMDL Program has not been adequately implemented in the past is no new reason not to move ahead and implement things right now.
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In fact, the unfortunate truth is that over 25 years of inaction has brought us to the point where we have 20,000 impaired waters, we have 35 species of trout and salmon that are on the Federal Endangered Species List and importantly, we have Federal courts stepping in to really guide the program. We have court actions in 25 States that are in place because conservationists are trying to move the States and EPA forward.
I included some words of the Federal judges who have looked at the situation and agree strongly with us that the States and EPA have been very, very slow to implement this program.
I want to sum up with one thing. That is that with or without the EPA TMDL proposal, with or without the passage of this bill, the mandate remains in the Clean Water Act for EPA and the States to draft TMDLs to help clean up the Nation's impaired waters. The EPA proposal, we think, is a sound approach to address that mandate.
I will conclude there and be happy to answer any questions.
[The prepared statement of Mr. Moyer appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Barrett, before we begin with you, I apologize again. We will take a brief recess so that members can vote.
[Recess.]
The CHAIRMAN. The hearing will resume.
Mr. Barrett.
TESTIMONY OF JOHN BARRETT, COTTON PRODUCER
Mr. BARRETT. My name is John Barrett and I operate a cotton and grain farm in south Texas. I previously served as an agricultural representative on EPA's Farmer Federal Advisory Commission on TMDLs.
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Thank you, Mr. Stenholm and members of the committee for the opportunity to reappear before the whole committee to provide input on this topic which is so vital to our industry and to the future of water quality protection.
I strongly support H.R. 4502 for the reason EPA opposes it. An investigation of the scientific underpinnings of this program will expose the fact that it doesn't have any. You already know about the GAO report relative to lack of nonpoint source data but let me share some other EPA stories with you.
Two years ago, EPA said that agriculture impaired 70 percent of the Nation's rivers and streams. This was widely reported in the press at the time. Recently, EPA has said that agriculture is responsible for impairing 40 percent of the assessed river and stream miles. I admit that 40 percent is a lot better than 70 percent, but when you look at EPA's numbers, the most truthful statement that can be made is that as far as the States know, agriculture, along with a variety of other sources, contributes to the impairment of about 5 percent of the Nation's river and stream miles. Unfortunately and unbelievably, one-half of the information supporting the 5 percent number is based on drive-by or windshield monitoring that they call evaluated assessments.
Let me show you the value of injecting science into watershed management. Seven years ago EPA, the State of Texas and the best and the brightest of our local academia were convinced that agriculture was public enemy No. 1 with respect to water pollution on the middle Texas coast. This was not because they had any data but the mere fact that agriculture was present in the area and models from the Chesapeake Bay.
Through the Corpus Christi Bay National Estuary Program, EPA funded and oversaw an unprecedented 4-year monitoring program in which seven farmers opened their confidential business records and their farms to the U.S. Geological Survey and the Texas Agricultural Experiment Station. The results of this study are stunning. I am going to make it available to the committee.
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The short story is that in terms of nitrogen, the farmer supplied 80 pounds per acre per year for crop production. The rain water that fell on the land contained 3 pounds per acre per year. The runoff load of nitrogen was only half a pound per acre per year. In other words, the rainfall delivered six times more nitrogen to the area than the runoff.
Returning to H.R. 4502, I believe that finding No. 8 under section 2 of the bill is illustrative of one of the major faults of the TMDL Program. EPA, and in some cases, the courts, have forced the States to list and ultimately develop TMDLs for thousands of streams based on anecdotal evidence or the mere inclusion of the stream on a different list for the purpose of making the watershed eligible for Clean Water Act, section 319 grants.
This has happened all over the country but let me share Oklahoma's plight with you. I will also make this letter a part of the record, Mr. Chairman. It is from John Craig, the manager of the Water Program at the Oklahoma DEQ to his staff, dated February 17, 1998.
The subject is, ''Removal of Streams from the 303(d) List.'' ''Today, I talked to Bill Hathaway of EPA''—EPA region 6, by the way—''about the feasibility of removing those streams from 303(d) list''—the TMDL list—''where there is no apparent justification/impairment verification to have included them on the 303(d) list in the first place. He cautioned that, while we may not have justification for their original inclusion, we cannot remove them without good justification and documentation.''
The proposed NAS report will spotlight what I already know about the TMDL Program. There is no credible, scientific link between individual best management practices and numeric or narrative water quality standards. Since water quality standards are the bar of the TMDL Program, this means despite all of EPA's rhetoric, there is no way to quantify a daily, nonpoint source load. As I told Chairman Goodlatte's subcommittee last fall, farmers can't control the rain and neither can EPA.
The comments on the August 23 rule, which USDA submitted to EPA in November, were true then and they remain true today. My greatest concern is that the command and control approach to watershed management which EPA and others desire will be destructive of the voluntary approaches and partnerships which this committee and my peers have worked so hard to develop.
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Thank you very much for your time and leadership.
[The prepared statement of Mr. Barrett appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Ice.
TESTIMONY OF GEORGE ICE, PRINCIPAL SCIENTIST, NATIONAL COUNCIL FOR AIR AND STREAM IMPROVEMENT, ON BEHALF OF THE SOCIETY OF AMERICAN FORESTERS
Mr. ICE. Thank you.
I am a forest hydrologist with 25 years of research and experience in forestry and water quality. I am testifying on behalf of the Society of American Foresters as the Chair-elect of the Society's Water Resources Working Group.
Ten months ago, the forestry community was shocked to learn that EPA was proposing to reclassify silvicultural practices, even activities like tree planting and fire control, as point sources making those practices potentially subject to national pollution discharge elimination system permits. We were surprised because of consistent findings that nationwide silviculture is a minor source of water quality impairment and effective silviculture nonpoint source control programs have been developed by the States.
More importantly, silvicultural activities simply do not meet the technical definition of point sources and can't be controlled or monitored in the same manner.
As you know, EPA prepared for Subcommittee Chairman, Representative Goodlatte, a list of silviculturally-impaired water bodies. This list was developed by EPA from the National Summary of State 305(b) Reports. Given our understanding of forestry and water quality, both the Society of American Foresters and the National Association of State Foresters, felt that a closer look at the list provided to Representative Goodlatte was needed. The EPA list included only those States which did not have comprehensive enforcement authority in which it identified silviculturally impaired water bodies.
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The National Association of State Foresters asked each State forester whose State had water bodies on the list to provide information. What SAF and the National Association of State Foresters found surprised even us.
The most recent 305(b) reports show that there are over 6,000 water bodies identified as impaired in these 18 States. The list provided to Representative Goodlatte included a little over 1,000 water bodies impaired presumably by silviculture. We found that as we started to look more closely, the details of those lists, 496 of those water bodies are no longer listed as impaired under the most recent 303(d) lists, that 77 of those water bodies are impacted by other activities that have pollutants that are not possibly associated with forestry such as mercury or arsenic or fecal coliform and that 383 of these were based on evaluated data, windshield reviews, personal observations.
This means that 48 percent of the more than 1,000 water bodies on the EPA list are not named in the most recent State 303(d) lists, another 37 percent are based on inadequate data or personal observations, not on credible water quality measures and that management activities other than silviculture are frequently the primary source of impairment and that in some cases, water bodies are listed for pollutants not related to forestry activities.
This review points out that water quality information presented to Congress is largely anecdotal and without consistent water quality assurance requirements. In some cases, expectations of Federal watershed funding led local agencies to provide to States expansive lists of potentially impaired water bodies. States that have required credible data have found dramatic drops in the number of water bodies listed as impaired and that has allowed them to focus their limited resources on real issues.
There is also uneven reporting by the States making it difficult for EPA, for Congress and for others to interpret the results of national 305(b) reports and 303(d) lists. Some States identify silviculture as a general, nonpoint source pollutant. Other States break out logging roads, harvesting/disposal and chemical applications, others don't identify silviculture as a pollutant category at all.
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The information available on water body conditions is often not the most current or easily interpreted. I would point this committee to the example provided by Montana which does provide a web site that has a list of currently impaired water bodies and easily accessible information on each.
In summary, we found that the information about water bodies impaired by silviculture does not stand up to close scrutiny. Only 84 of the more than 1,000 water bodies on the list sent to Congress are still listed as impaired by the States in their most recent 303(d) lists, were not listed based on evaluated data and had pollutants that might be impacted by silviculture activities.
Time did not allow us to do a detailed review of the 84 water bodies that were remaining but 75 percent of those are in one State, in Montana, and silviculture ranks as 10th as a potential category for impairment in that State. Frankly, the request for information elicited a lot of frustration by State agencies. Many were frustrated with EPA's guidance to include water bodies identified as impaired based on old assessments and inadequate data.
Perhaps this frustration was summarized best by Howard Marcus with the Minnesota Pollution Control Agency. He stated, ''Minnesota has significant nonpoint source pollution problems and it may have some silvicultural, nonpoint source pollution, but none of the impaired waters in the State can be linked to silviculture.''
That concludes my remarks.
[The prepared statement of Mr. Ice appears at the conclusion of the hearing.]
The CHAIRMAN. Mr. Winstanley.
TESTIMONY OF DEREK WINSTANLEY, CHIEF, ILLINOIS STATE WATER SURVEY
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Mr. WINSTANLEY. Thank you.
I would like to thank the committee for providing an opportunity for me to give a brief summary of my written testimony.
My name is Derek Winstanley, chief of the Illinois State Water Survey in Champaign, IL. My main interest is to ensure that the best scientific data are used in addressing environmental issues that are important to Illinois and the Nation.
In my written testimony, I go into considerable detail to explain the implications of not using all available scientific data in conducting an assessment of an important environmental issue, and that is hypoxia in the Gulf of Mexico. I have shown that by not presenting all available data in the national hypoxia assessment, the extent to which the Illinois River was degraded in the 20th century was not recognized. The river itself was hypoxic in the mid–20th century. It was depleted of oxygen. Fish, wildlife and ecosystems were decimated.
More importantly, the same data omissions have failed to recognize the extent to which the Illinois River has been cleaned up since 1970. We have already reduced the concentration of nitrogen in the Illinois River by 50 percent since 1970. The concentration of nitrate has returned to the level it was about 40 years ago in 1960, even though the amount of nitrogen fertilizer used in Illinois is today about seven to eight times greater than it was in 1960.
I conclude that the available scientific data do not allow a causal chain to be established between nitrogen concentrations in midwest rivers and nitrogen concentrations in the lower Mississippi River. Appropriate baselines for determining reductions in nitrogen loads also have not been established.
Whereas the Committee on Environment and Natural Resources finds that a 40 percent reduction in nitrogen loads from present levels is needed in the Mississippi River Basin to return nitrogen loads to about 1960 levels, data show that in Illinois we have already reduced the concentration of nitrogen by about 50 percent.
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This information is also important in the development by USEPA by the end of this year of new criteria for nitrogen. These criteria and the subsequent standards are to be tailored in part on downstream effects including coastal eco-regions in the Gulf of Mexico. I believe it is an intent of the U.S. EPA for States to apply total maximum daily loads to allocate pollution reductions to meet what will be the new nitrogen standards. This is the connection between my presentation and the committee's interest in TMDL.
Thank you for providing the time for me to give this information. I would be pleased to answer any questions.
[The prepared statement of Mr. Winstanley appears at the conclusion of the hearing.]
The CHAIRMAN. Thank you very much.
Mr. Guerrero, the GAO report that was released last week raises serious questions about the adequacy of EPA's cost analysis of its proposed rules. According to your report, there is a significant uncertainty about whether EPA's analysis met the requirements under the Unfunded Mandates Reform Act of 1995. Because EPA chose not to do the analysis required by the Act, do you have any idea of what kind of cost and benefit information would be missing that would have been in the report otherwise?
Mr. GUERRERO. The Unfunded Mandates Act would have required a qualitative and quantitative assessment of the anticipated costs and benefits. EPA provided a more qualitative assessment in their analysis so one thing that would be different would be a more quantified estimate of benefits, for example.
Second would be a written statement is required where the Agency is to identify and consider a reasonable number of regulatory alternatives and from those to select the least costly, most cost effective and least burdensome alternative that achieves the objectives of the rule. So that type of analysis would also need to be laid out very clearly.
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The CHAIRMAN. Do you have any idea of about how much we are talking about that would be involved here, how much money?
Mr. GUERRERO. No. We did not separately estimate either cost or benefits. We merely pointed to the deficiencies of EPA's own analysis.
The CHAIRMAN. Mr. Lyons, according to page 18 of the GAO report, USDA officials told GAO they believe the private sector would incur additional costs under the EPA's proposed rules. This was consistent with the famous October 22 letter which states:
The EPA is suggesting that this rule will cost less than $25 million in any one year. Planning and implementation, BMPs and pollutant management strategies will cost more than $100 million annually based on past similar experiences in USDA. If the cost of the proposed rule imposes costs in the hundreds of millions of dollars and potentially billions of dollars, then it is essential that the Federal agency, States and the public have a greater awareness of these costs and alternative means of achieving the desired end.
Do you agree with USDA officials who told GAO that the EPA's rules would impose additional costs on the private sector?
Mr. LYONS. We certainly believe that any efforts to implement additional measures to address nonpoint source pollution will require some costs associated with technical assistance and the cost share assistance that would provide the means to address those nonpoint concerns.
I can't tell you what those costs would be and we have not done a thorough analysis to understand those additional costs and the comments made in the now infamous letter were not based on any substantive analysis to that effect.
The CHAIRMAN. So basically that was just pulled out of the air?
Mr. LYONS. I would characterize it as an educated guess but not based on any specific analysis.
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The CHAIRMAN. Would you disagree that it could be possible it would reach hundreds of millions, potentially billions of dollars?
Mr. LYONS. I have no basis to make that judgment, Mr. Chairman.
The CHAIRMAN. But it could be true?
Mr. LYONS. I don't know that it could or couldn't, sir.
Mr. FOX. Mr. Chairman, could I clarify something about the costs?
The CHAIRMAN. Yes, you may.
Mr. FOX. Part of the challenge here is trying to distinguish what is the cost associated with this TMDL proposal and the baseline. I just wanted to clarify this for the committee.
When Congress passed the 1972 Clean Water Act, Congress said they wanted clean water in this country. When Congress included in the 1972 Act, the requirements for TMDL, Congress laid out a procedure to get to clean water. When we hear some of these cost numbers thrown around, some of these numbers relate to the overall cost of providing clean water in this country and frankly, aren't necessarily associated with the cost of the TMDL rule.
The biggest disagreement that the Agency has with the GAO report, and I do respect a lot of the work they have done, is simply on the question of baseline. There is a TMDL program out there, it is one being implemented by the States. What we costed in our analysis was the incremental costs associated with these new regulations based on the baseline regulations that actually came out of the Reagan administration in 1985.
The CHAIRMAN. Mr. Ice, has the EPA given your organization an opportunity to negotiate last minutes to their rules to address your concerns?
Mr. ICE. They have not.
The CHAIRMAN. Mr. Winstanley, have officials from your State been given an opportunity to negotiate last minute changes to EPA rules?
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Mr. WINSTANLEY. Not that I am aware of.
The CHAIRMAN. Mr. Stenholm.
Mr. STENHOLM. I have three questions from Mr. Berry, who was not able to be with us for the entire hearing. He would like to submit questions to Mr. Fox to be answered in writing for the record. Mr. Fox?
Mr. FOX. I would be happy to do that.
[EPA did not respond for the record.]
Mr. STENHOLM. I want to make a preliminary comment because many times the frustration that spills forth from this side of the dais is not, I am told, understood by those on the other side.
Jim, you and I have been friends for a long time and we are still friends. No question about that. I haven't known you, Mr. Fox, all that long but my comments are not based on hostility.
We have been trying for the last 6 months to get a structure for water built around Lake Stamford in my hometown. The same Clean Water Act that Mr. Fox quotes denied us the opportunity to build a dam, not a permanent dam but a temporary dam in order that we might get water for the people of the 17th district and we have been denied that opportunity as of today.
It is this lack of common sense that creates the frustration for me. I agree with the intent of EPA, I agree with the intent, Mr. Fox, of what you have tried so hard to do over your brief time here in Washington, DC. Who could disagree?
Our frustration comes though with, for example, FQPA. We had a good system going in which we had inclusion of all groups in the decisionmaking process. It is when you decide to exclude some from the decisionmaking process that your problems multiply. That is the line of questioning that I want to go with.
Mr. Fox, on June 13, Mr. Combest and I sent a letter to Administrator Browner expressing our concerns that EPA may have been quietly meeting with a handful of Washington-based interest groups to negotiate changes to your proposed rules. It appears that our concerns were well-founded. We understand that you and Administrator Browner have had a number of meetings with the NRDC, the Sierra Club and other interest groups in Washington over the past few weeks. Is that correct?
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Mr. FOX. I have had meetings with them and I also have had meetings with the corn growers, the Farm Bureau, the Association of State and Interstate Water Pollution Control Administrators, the Environmental Council of States and all of my meetings, including meetings with members of this committee are a part of the docket for the rulemaking, sir.
Mr. STENHOLM. On May 19, a number of environmental groups led by NRDC and the Sierra Club wrote to Administrator Browner urging that your rules be withdrawn. Was the purpose of the meetings you held with them to help them change their minds?
Mr. FOX. The purpose of the meetings that I have held with all of these interest groups on the TMDL rule has been to explain what we were thinking, to listen to their ideas and comments and to react accordingly.
Mr. STENHOLM. I understand the meetings with some of the groups yielded a number of significant changes to the proposed rules prior to their submission to OMB. Is that correct?
Mr. FOX. Again, we have been listening for the better part of 6 months to a number of different interest groups. I can point to a number of changes that are similar to comments we received whether from the forestry industry, the States or even some in the agricultural community.
Mr. STENHOLM. You can submit for the record meetings that you have had with agricultural groups in which you have listened to them and made changes similar to that which you have made for other groups?
Mr. FOX. What I can tell you, and again, when the rulemaking is complete, the docket will certainly be available for public record, but I would tell you that I have monthly meetings with a number of different interest groups, including members of the agricultural community. I don't want to speak for them as to who attends them, it is a little different combination every time. It certainly includes I would say about a dozen of the leading Washington-based interest groups.
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We talk about the TMDL rule extensively. Obviously, many of these groups submitted written comments and I can point to specific changes we have made in the rule in response to some of the comments we have received from the agricultural community.
Mr. STENHOLM. That is interesting because the word on the street is that the NRDC, Sierra Club and other environmental groups have changed their position and are now supporting your rules, although we understand they will probably not make any formal public announcements to that effect. Is that your understanding?
Mr. FOX. I won't pretend to speak for those groups, sir.
Mr. STENHOLM. Do you have any of the related agricultural groups that have been prepared to issue some kind of a statement saying they believe they have met with you and their concerns have been heard?
Mr. FOX. Again, I won't represent their views.
Mr. STENHOLM. Mr. Fox, now that you are done negotiating changes to your rules with Washington-based interest groups, do you intend to hold similar further meetings with local State agencies, agricultural groups, landowners and others throughout the country to address their concern about your proposed rule?
Mr FOX. As I said, we have had throughout the course of the last year, numerous meetings with State governments in particular, including very detailed discussions about language that go back many months with State governments and those that would actually be involved in implementing the rule.
It has been very important to me that we come up with a rule that the States can feel like they can implement. Again, I don't want to speak for them but I think it is fair to describe they were helpful discussions that we had with the States.
We did have a Federal Advisory Committee that you are aware of that formed the basis for much of what we ultimately proposed that had a wide variety of interest. That started about 3 years ago, maybe we are up to 4 years now. So I can't tell you that I have met with every local government around the country. I can tell you that I have certainly tried to do my best to listen over the course of the last couple of years to the chief comments that have been raised. I have tried to make myself personally available to anyone that wants to talk about this subject.
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Mr. STENHOLM. I have a letter here from NRDC in which they state on their behalf that their concerns have been addressed. Mr. Barrett, you are representing agricultural producers. Have agricultural concerns expressed to Mr. Fox and others over the past several months been addressed?
Mr. BARRETT. No, sir. They haven't been addressed positively from our standpoint, I should answer. One of the most telling changes made at the last minute to the rule involve a small arcane part of it of how you express TMDLs. The Federal Advisory Committee that Mr. Fox mentioned had a unanimous recommendation that TMDLs should be expressed in both daily and possibly monthly or annual average loads to account for the fact that nonpoint source runoff is so unpredictable because of rainfall.
That was included in the rule that was published August 23. It was strongly opposed by the groups that you have just named because in their litigation position insisted that a TMDL had to be a daily limit. It came out and mysteriously disappeared from the rule in the version that was just sent to the OMB on June 19.
Probably the worse one of all is that BMPs for nonpoint sources had to be practicable. That implies economic achievability, feasibility. They have refused to follow that FACA recommendation and there is no statement in the rule as to practicability.
Mr. STENHOLM. Mr. Fox, would you comment on Mr. Barrett's statement in which he seems to be expressing considerable dissatisfaction with whether or not EPA was listening. You have stated that you were listening.
Mr. FOX. I hope the committee was not taking my comments to suggest that I have successfully won support of everybody for this. That is certainly not the case. I think it is fair to say that in general, a number of agricultural organizations still have very strong concerns. I don't want to suggest that is otherwise.
When I look back at the record and the comments we received, I can tell you I honestly tried to go through all of these comments and genuinely weigh them in the context of the goals we were trying to achieve. Some of the specific changes that we made in response to concerns from the agricultural community that I would mention for you would include things like emphasizing that voluntary programs should get full credit in the TMDL. There was question about whether or not that would take place. This is something we have made crystal clear in the final rule that if you are implementing a voluntary program, you can get credit for that in a TMDL.
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A second issue was raised about implementation plans and whether or not a nonpoint source implementation plan would look different from a point source. I agree completely that you cannot make site specific determinations about how you are going to solve a water quality problem and sometimes for nonpoint sources, it must be on a much larger scale. This was an area we also clarified for the agricultural community.
I think in general, the agriculture interests were also concerned about the timeliness of all of this. They wanted some certainty that we wouldn't be pushing this along too fast. We extended the time period for list submission from 2 years to 4 years. We made it clear that we weren't establishing a uniform national standard for attainment of water quality standards.
I can point to a number of changes that are at least consistent with some of the ideas that came from the agricultural community. I can't tell you that I addressed all of their concerns. I must tell you in the conversations I have had with many of the agricultural folks that I try and do regularly, they have a fundamental premise that what they believe we are doing is illegal. That is part of the way these discussions go and when I ask for some specific ways to improve it, I often get we think what you are doing is illegal and that tends to be kind of the end of the conversation.
The CHAIRMAN. Mr. Pombo.
Mr. POMBO. Mr. Winstanley, in reviewing your testimony the scientific research you have done is quite impressive. However, it is also a bit disturbing because of what it reveals about the quality of scientific data used by Federal agencies to address water quality issues in those rivers.
Can you explain to me how they can not pull in the information your organization has accumulated over 100 years, how that could not be brought in as part of the science that is used in this decisionmaking process?
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Mr. WINSTANLEY. I can't speak on behalf of the Federal Government, all I can state is that the Federal Government in its final reports acknowledge there is a tremendous amount of additional data out there they have not had time to search out in the assessment process. That was 12 months ago. Since then, I have personally provided data from Illinois through the public comment period and provided data at public presentations and professional organizations, and hard copies of the data to USGS in Illinois.
Why they haven't used it, I cannot explain. All I can tell you is that data have been made available to them.
Mr. POMBO. Do you believe if they had used the data you provided, it would have changed the rule, that they would have come to a different conclusion if they had actually looked at the science?
Mr. WINSTANLEY. Yes. I think if you look at a more comprehensive dataset and all the data that we have, I would emphasize that the data needs to be quality assured. We need a much greater effort looking at the quality of all the data, both the data I have and the data the Federal Government uses.
Putting all the data as they currently stand on the table does paint a very different picture when you look at the additional data I provided. I have talked specifically about Illinois and the Illinois River but I also know additional data for the Middle Mississippi River between St. Louis and Cairo also paints a different picture than implied by the Federal assessment.
Mr. POMBO. How would it change the rule if they had looked at it? What kind of different decisions would have been made?
Mr. WINSTANLEY. I can't answer what different decisions would be made. I can try and explain the difference that data makes in trying to understand from a scientific perspective what has been going on over the past 100 years.
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The perspective that is in the national hypoxia assessment is, for Illinois, for example, the amount of nitrogen in the river has increased from the beginning of the 1900's and they present data from about 1897 to 1902 and increased to its current level between 1980 and 1996. In fact, they just assumed there has been a linear increase over that time period, even though they do not present any data for Illinois for almost 80 years between 1902 and 1980.
When I put that additional data on the table, we see that amount of nitrogen in the Illinois River in fact increased dramatically during the first half of a century to reach a peak around 1960, 1970 and since that time, has actually decreased by 50 percent. So whereas the Federal Assessment states we need to reduce nitrogen loads by about 40 percent in order to bring back nitrogen levels to a level similar to the 1960 period, in Illinois we have already done that. So there is a difference between an upward trend and a downward trend. It is 180 degrees opposite.
Mr. POMBO. Can you explain what the danger is in proposing an expansion of rule or authority or new law using flawed data, using science that is pulled into question because of other science that is available that they chose not to pay attention to?
Mr. WINSTANLEY. In the case of the National Assessment on Hypoxia, it is not directly at this time related to rulemaking. There is a draft action plan that is being discussed and proposed as I mentioned earlier and it may be brought into the setting of criteria and standards for new nitrogen criteria.
From the data I presented to the committee this morning, one of the implications of not using all the available data is that the measures to reduce nitrogen concentrations and loads may not be effective. One of the biggest discrepancies that I mentioned is that in Illinois, even though the amount of nitrogen fertilizer has increased seven or eight fold since 1960, when we look at the nitrogen concentration data in the Illinois River, the nitrogen concentration has actually decreased over that time. So we do not see a consistent relationship between nitrogen fertilizer use and nitrogen concentrations in the river.
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If you reduce nitrogen fertilizer from the historical data, we cannot with any degree of confidence say that you would expect to see a reduction in nitrogen concentrations in the rivers. They may be less than effective strategies.
Mr. POMBO. In the rulemaking process, if the assumption is made that because we have had an increase in nitrogen fertilizer and you exclude that 80-year time period, going through the rulemaking process you would assume the conclusion they would come to is you have to quit using nitrogen fertilizer because we have had this increase and it is not based upon the science, it is based upon a faulty assumption?
Mr. WINSTANLEY. Correct.
Mr. POMBO. Yes, sir?
Mr. ICE. I think there is a good example of what you are saying in the Twalton Basin in Oregon which was one of the first TMDLs that was conducted in the United States. Five million dollars was spent to develop water quality criteria to reduce phosphorous concentrations which were leading to excess algae production during the summer in the Twalton Basin. Much progress was made. There were really improvements in the phosphorous loads.
What was found was that ancient flood deposits which had high phosphorous concentrations were providing groundwater that was flowing into the stream systems during the summertime providing the base flow for those stream systems and essentially water quality criteria were developed with this $5 million TMDL assessment which are unachievable.
The U.S. Geological Survey has just published a report that says that despite the improvements that have occurred in point source discharges, the natural base flow has phosphorous concentrations that make the criteria unachievable. So we hear concerns about TMDLs that were not we're not acting quickly enough. Here we have a case where we have maybe moved too quickly without the information that we needed to make rational, effective decisions about what the appropriate standard should be.
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Mr. BARRETT. I would like to respond a bit to what Mr. Winstanley just said about the national assessment. The effect of that document is that as we speak today, Mr. Fox is trying to get the Mississippi River Task Force to signoff on a numeric goal to reduce nitrogen loading from 41 percent of the United States by a set number, 30 percent.
Our analysis leads us to believe that reducing the nitrogen loading by 30 percent could mean reducing fertilizer use by as much as 58—that is too exact a number—somewhere as much as 65 percent. That is the effect that comes about when they start setting these goals based on faulty science.
Mr. FOX. For one clarification, I apologize but there is a little comparing of apples and oranges here. I want to make sure the committee is aware that Mr. Winstanley and Mr. Barrett were referring to our work on the Gulf Hypoxia Task Force and the assessment they kept referring to and the science was related to that, not specifically to the rule we are working on. I don't want to suggest they aren't related issues.
As for the nutrient loading goal, it is true, there is a dead zone in the Gulf of Mexico that is about the size of the State of New Jersey. Virtually all scientists agree that it has been growing because of increased nutrient pollution coming down the Mississippi River. It is true that I, along with the States of Louisiana, Minnesota, Wisconsin and other States are looking to try and come up with some voluntary—I emphasize voluntary—goals to guide some of our best management practices to improve this problem in the Gulf of Mexico.
Mr. POMBO. With all due respect, Mr. Fox, I understand exactly what they were talking about. I believe the issue was not specifically what they were talking about as much as it was the ability of EPA to use faulty data to not search out the best science available. This is not just on TMDLs, not just on this particular problem; it goes throughout the entire history of EPA over the last several years where they have refused to use all the data that is available. I think that is what they were talking about and that does relate directly to the rule this hearing is on.
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I thank the chairman.
The CHAIRMAN. Mr. Holden.
Mr. HOLDEN. Mr. Fox, following up my opening statement about the meeting held in my congressional district in Berks County, PA, I know emergencies occur and we are all unavoidably detained at one time or another, but when you have several hundred people waiting for an EPA representative to show up and no one shows up, and to my knowledge, there has not been any explanation put forth, that to me is unexcusable.
I wish you would look into it and find out what happened, why your representative did not show up so I can relay that back to my constituents.
Mr. FOX. I will do that.
Mr. HOLDEN. Following up on that, now that you have had extensive meetings with the interest groups here in Washington, I think you need to spend more time in Berks County, PA. I see that you spent time in Chairman Shuster's district in Altoona, PA, and I know these meetings are not pretty but I can tell you we are hearing some real concerns. I think the EPA needs to get out and do more groundwork and hear these concerns.
The basic concern I am hearing from my farmers is that your proposed rule, as set forth, if it goes forward, we are going to be looking at our farmers who are having a rough time trying to stay in business due to regulation, developmental pressures and so on, but they are going to be looking at a very expensive permitting process.
I heard you answer one question that you disagree with that. I just wonder if you would elaborate on that. Are my farmers not being realistic here, am I getting the wrong message from them?
Mr. FOX. I don't want to characterize anybody as to the intent but I can tell you unequivocally there is nothing in this rule that would ever require a permit to be issued for a nonpoint source of pollution. That has been one of the most common mischaracterizations of our rule, that we are going to somehow require permits now for farmers around the country, that we are going to somehow require permits every time a tree is cut down. That simply is not true.
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I don't know exactly how your district is shaped but I can tell you we have worked very successfully with the State of Pennsylvania and other representatives of the Chesapeake Bay community to find alternatives so that we can implement the existing voluntary programs consistent with the TMDL Program. We have been having a lot of success I know in central Pennsylvania.
Mr. HOLDEN. Then you have a public relations problem because I don't have many times when I have 200 people show up in my congressional district over an issue like this. I bet if Chairman Shuster was here he doesn't have many times when 400 people show up on an issue like this, so you really need to do a little better work in trying to get what you actually are trying to propose out because it is either being misunderstood or we are having a communication problem.
Mr. POMBO. Mr. Holden, would you yield for a moment?
Mr. HOLDEN. Sure.
Mr. POMBO. In the opening statement, Mr. Lyons said that a permit would only be required when it clearly impairs a water body. I think the fear your farmers, my farmers and others have is that the same science will be used to determine whether or not it clearly impairs a water body on issuing permits somewhere down the road. I think that is the big fear they have.
Mr. LYONS. If I could clarify, Mr. Pombo. I was not making reference to agricultural activities or nonpoint pollution. I was making reference to a compromise that was developed with EPA on silvicultural practices and those circumstances where a State failed to develop BMPs to address water quality concerns and a particular silvicultural activity was severely impacting a water body which is clearly the exception to the rule. It does not apply to agriculture and nonpoint in any way.
Mr. ICE. We are really concerned that the limited scope that has been portrayed for the silvicultural permits which have been withdrawn as EPA has suggested they will repropose, we are very concerned that is not going to be a limited requirement.
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As you have seen from the data shown here, there are literally tens of thousands of impaired water bodies throughout the United States. We have heard that environmental groups are proposing to sue, to require that these permits be expanded and national pollution discharge elimination permits be expanded, not to just those water bodies that are impaired but through all States.
Frankly, the history of the 208 Program suggests there is a possibility that could occur. Not only do we face impaired water bodies under section 303(d) but there are threatened and endangered species streams, source areas for the Safe Drinking Water Act, so there is a tremendous potential that this would not be a limited program but would in fact be an expansive program.
Mr. BARRETT. The biggest problem for agricultural, includes row crop and forest people, is that they have purposefully, with intent structured the definition of a BMP in this rule so that ultimately, especially even if EPA didn't want to do it, under the citizens suit provisions of the Clean Water Act, nonpoint sources could be subject to source elimination. That means if practicable, economically achievable BMPs don't meet water quality standards, since they have left out the word practicable and feasibility out of nonpoint, that means you have to stop farming in that watershed if your feasible BMPs don't work.
Mr. FOX. I would say that is simply absolutely, 100 percent not true.
Mr. BARRETT. I would respond if that is 100 percent not true, then they should have included practicability and feasibility in their rule like they were asked to by agriculture groups and like the FACA Committee unanimously agreed to do.
Mr. HOLDEN. Mr. Fox, you obviously have a big communication problem. Just to reiterate my opening statement, we have to go back to the drawing board. This is moving forward with too much controversy.
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The CHAIRMAN. Mr. Gutknecht.
Mr. GUTKNECHT. I share many of the concerns expressed here today. I think it is bigger than just a communication problem. I want to ask a relatively simple question.
At the beginning of the year we had about 2,000 dairy farmers in my district. The average dairy farmer milks about 67 cows. The concern a lot of them have is that this is going to be an enormous expense to them. Our dairy farmers are hanging on right now with $10 hundredweight milk. How much cost is this going to put on the average dairy farmer in my district? Can anyone answer that?
Mr. FOX. I can tell you this. If their dairy farm happens to be located in a watershed that is not impaired by dairy, there is going to be no cost whatsoever of this rule. I can't tell you without looking at the data to find out if they are causing a problem but the way the program is set up it simply says that if you have a problem in a water body, all the different sources of that problem have to come together and come up with a solution.
Mr. GUTKNECHT. How do you measure whether you have a problem? We have a group called the Trout Association in southeastern Minnesota and they have a done a fabulous job. They worked together with the farmers and the net result is we have more trout in our streams today than we had 15 years ago. I think it is a real tribute to all the people who have been working in my district to make certain we do have clean waters.
If that is the case, then is it fair to say to all my dairy farmers, you have nothing to worry about?
Mr. FOX. It is certainly fair to say that to them if they are not contributing to a water quality problem. The way we measure this——
Mr. GUTKNECHT. That gets really very difficult to quantify. Have you ever gone out to a meadow and watched dairy cows when they go out to the pasture?
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Mr. FOX. Yes, I have.
Mr. GUTKNECHT. Have you ever watched them when they go to a creek?
Mr. FOX. Yes, I have.
Mr. GUTKNECHT. Do you know what happens?
Mr. FOX. Yes, I do.
Mr. GUTKNECHT. They have been doing that for hundreds of years and so have the elk and deer. That is what happens when wildlife go out and take a drink from a stream. When you say if they are not contributing, what does that mean?
Mr. FOX. The State has some fairly strict levels of pollution that they use to determine whether or not water is polluted or not. In the latest water quality inventory to Congress, it is a State-by-State analysis of which waters the State has deemed are polluted. I can tell you in the example you use, in fact, farmers that allow their cattle to drink from the stream and have that kind of access without fencing off the stream, in many cases that is precisely what is causing some of the water quality problems. A general, best management practice is to keep your animals out of the water.
Mr. GUTKNECHT. So in other words, they do have a serious problem?
Mr. FOX. Again, I can't tell you that without knowing the data surrounding the stream you are talking about but we would be happy to have some further discussions on that if you like.
Mr. GUTKNECHT. But you wouldn't take as evidence that the trout in those streams are more abundant today than they were?
Mr. FOX. That is one of the factors that is used and that could be a very overriding factor, that that is a healthy stream.
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Mr. GUTKNECHT. It sounds to me based on what you have told me right now, they do have some real concerns and their concerns need to be addressed.
I will yield to the gentleman from Texas.
Mr. BARRETT. Just another example about data. There is a river that runs through my farm, and the State of Texas decided it was impaired by bacteria, the same product that has to do with what you are talking about and in that report Mr. Fox has in front of him, they said the cause for the impairment was riparian grazing.
My high school son did a 3-year science project with a QAQC program and found accepted data by the Texas T&RCC that the problem was actually being caused by septic tanks from subdivisions and the grazing didn't have anything to do with it. So again we come back to how States handle and manage their data.
I don't want the committee to get the impression that this 305(b) report is even an accurate document. Half the monitoring they allowed to be done, a form of monitoring known as evaluating assessments where somebody just drives by in a car and looks at it and Idaho ended up with 962 waters on their TMDL list because of evaluative assessments.
It is a good report and they are making it better but it is not something that you can take back to your dairy farmers to tell them anything.
Mr. GUTKNECHT. I would conclude that I think everybody on this side of the panel and everybody in this room wants clean water but I think we also want to use common sense and good science. I think that is all we are asking for. Let us take time and sort this out.
If we have serious problems, we want to help solve them, we want to be a part of the solution. On the other hand, when you look at my dairy farmers that are hanging on by their fingernails, if you start imposing enormous costs on them, you are going to drive them out of business and at the end of the day, I think that is a $50 solution to a $5 problem. That is a classic EPA solution to a nonexistent problem.
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We are making progress, whether in the trout streams in southeastern Minnesota or Idaho, around the country, I think farmers want to work together to make certain our waters are clean. On the other hand, I think we have to make certain this administration, this EPA and yes, even our own USDA, uses sound science and proposes solutions that make sense to everyone.
The CHAIRMAN. Mr. Chambliss.
Mr. CHAMBLISS. Mr. Barrett, I see from your statement you are a fifth generation farmer in Texas?
Mr. BARRETT. Yes, sir, that is correct.
Mr. CHAMBLISS. Your family is not new to this. Would you agree that the No. 1 natural resource that allows you to make a livelihood for your family is the soil in which you plant every year?
Mr. BARRETT. Yes, sir, it is the soil and I have a stake on my farm that is a boundary that is referenced in a deed in 1924 that my great grandfather wrote that is flush with the surface of the soil. That boundary is still there 75 years later and it is still flush with the surface of the soil.
Mr. CHAMBLISS. Would you also agree that the second most important natural resource that allows you to carry out your work everyday on your farm would be an adequate supply of good, clean water that is available to you for irrigation purposes?
Mr. BARRETT. Irrigation and that God provides also, sir.
Mr. CHAMBLISS. As part of the utilization of that water also, I assume you use a lot for human consumption from the same source basically you get your irrigation water?
Mr. BARRETT. That is correct. That is where we live.
Mr. CHAMBLISS. I assume that you, along with every other farmer I know engages in whatever best management practices are available to you to ensure that when God does allow water to come onto your farm, that you want to capture as much of it as possible to keep it there as opposed to it running off somewhere so you can utilize it to grow your crops?
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Mr. BARRETT. That is why personally after this meeting, I want to give you a copy of the study that EPA funded that documents the fact that we are doing that in an environmentally sensitive way.
Mr. CHAMBLISS. You do everything within your power to make sure that your soil doesn't move, obviously you have done a heck of a job of that, and that you don't lose any of those chemicals that might tend to wash away with that land that you put on there for various purposes to kill insects or to put nitrogen in the soil?
Mr. BARRETT. We have documented that in the same study I just referred to.
Mr. CHAMBLISS. You guys who sit over at USDA and EPA really have no concept, in my opinion, of what goes on on a farm. You have to understand that the best environmentalists and the best stewards of the land in the world are guys like Mr. Barrett that get up every day and go make their living on that farm.
For you to say, Mr. Lyons, that in looking to address the water quality issue, USDA has made a decision that voluntary incentive programs are not the way to go frankly is not your decision to make.
Mr. LYONS. I didn't say that.
Mr. CHAMBLISS. Yes, sir, that is exactly what you said. You can have your say in a minute but let me finish.
Mr. LYONS. Yes, sir.
Mr. CHAMBLISS. That is a decision Congress needs to make; that is not even a policy decision in my mind. That decision has been made. When we have farmers out there whether growing crops or trees that are exercising best management practices to capture and control the flow of water on their land and it is not causing the problems that you have fixed in your mind apparently that it is causing, there is something wrong here. That is not a policy decision that you all ought to be making down there.
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For you to say to Mr. Berry a while ago that you are not coercing and coordinating with EPA in this type of decision, that you are engaging in conversation with them, really gets to the grain of this and goes against my grain and my feeling about this. That is, if there is anybody that ought to be standing up for agriculture and common sense agriculture, it is you folks at USDA, and you are not.
This is not the only example of it but this is a pretty clear example of it. You are the ones who ought to be saying, wait a minute, EPA, you are exceeding your jurisdiction on this and you need to step back and examine this a little more closely and use some common sense. Sound science is one thing but common sense is even more important on this particular issue.
There is no question you have exceeded your jurisdiction on this and we ought not to have to come forward with Mr. Stenholm's and Mr. Combest's legislation on this to slow you all down but it absolutely necessary and I commend them for taking the initiative to do it.
For you folks at USDA to jump into bed with EPA on this issue I think is simply not good policy on the part of USDA.
Mr. LYONS. First of all, I said that voluntary conservation, incentive-based systems is the way to go. It is a matter of policy and it is based on many of the programs that have been authorized by this committee. I think that has been recognized and in our work with EPA, EPA has come to acknowledge that.
Without having been to Mr. Barrett's farm, and I commend him for his tenure and his outstanding stewardship, I venture to guess the reason Mr. Barrett has been so successful in securing soil resources and protecting other resources is because he practices good conservation. I am fairly sure of that without going down there.
All we have attempted to do in working with EPA on issues associated with implementing TMDLs is to assure good, sound conservation practices, good common sense is implemented in a way that will ensure protection of water resources. In most regards, I suggest to you what would be required in terms of BMPs are simply the same standards that currently are required under the NRCS Field Office Technical Guides.
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We all need to recognize that agriculture continues to be exempt from permitting requirements. The rules proposed by Mr. Fox would not change that. There is a statutory exemption for stormwater discharge and irrigation return flows. Nothing would change that situation.
Our role at USDA is to help landowners be the best stewards they can be and we attempt to do that in implementing the statutes and the programs you authorize here. That is how we wold continue to operate to address the nonpoint source pollution concerns that are the subject of this hearing.
Mr. CHAMBLISS. Let me say you may have meant to say that voluntary incentive programs are the way to go but it struck me when you said it because you said they are not the way to go, that you had made that decision. It struck me very strange that you would say that.
Mr. LYONS. I apologize if I misspoke.
The CHAIRMAN. Mr. Smith.
Mr. SMITH. Mr. Fox, give me your estimate on a percentage basis of how much of the nutrient load nationally would come from agriculture as opposed to other nonpoint sources such as lawns, golf courses, factories, septic tanks? Do you have any idea what we are talking about as far as the contribution of agriculture?
Mr. FOX. We do have good numbers on a watershed basis as to the relative proportion of nonpoint source pollution coming from urban or agricultural sources. I am not sure national level data is of much value to decisionmakers but I could certainly see what we have.
I can tell you in places like Chesapeake Bay, Maryland, approximately 60 percent of the nitrogen is coming from nonpoint sources. The work we were doing in the Hypoxia Task Force——
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Mr. SMITH. No, no, agriculture versus other nonpoint?
Mr. FOX. I can get that data to you. Again, the Chesapeake Bay was roughly half is my memory.
Mr. SMITH. In Michigan, roughly 20 years ago, we came up with best farm management practices. In terms of the effectiveness of best management practices as opposed to TMDLs, where are we going to get the greatest results?
Mr. FOX. They are actually one and the same.
Mr. SMITH. If they are one and the same, they are not one and the same in Michigan.
Mr. FOX. A TMDL is really nothing more than a pollution budget. It is a way of saying how much pollution do I have to reduce to get to water quality goals. In so doing, you then implement BMPs to get to those water quality goals. This TMDL Program we are talking about is nothing more at one level than a process by which the States will work with their local governments and find out how much pollution they have to reduce. Ultimately implementing these decisions is up to the States and local governments and best management practices is going to be precisely the way they do it.
Mr. SMITH. It seems to me given the complexity of developing that TMDL, and because of the fact that even though our knowledge has gained a great deal in how water is contaminated, the complexity of developing the TMDL and asking a State to come up with the resources, both money and man hours to implement what I read as your proposed rule, is significantly different than what many States are doing now in terms of trying to determine the best possible way and farm management practices.
Mr. BARRETT. Mr. Fox has said a lot about flexibility for the States, watershed managers and everybody but I think a point that needs to be made is if an EPA regional bureaucrat decides they don't like something about the State's TMDL or implementation plan, they can reissue it and write their own. Under the proposed rule, they could only do it when the TMDL was first approved. Now they have it fixed so that anytime they get the urge, they can reopen the TMDL, by the Federal Government. This is not State flexibility that we are talking about here.
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Mr. SMITH. Do I understand under the rule and the law, you expect the States to come up with the resources to pay for this?
Mr. FOX. In fact, we have provided a significant amount of Federal resources and the President included in his budget a sizable increase to help the States through State grant programs implement the TMDL Program.
Mr. SMITH. What percentage is that?
Mr. FOX. The base program was $116 million nationwide.
Mr. SMITH. Percentage of total cost, has there been an estimate?
Mr. FOX. No, we haven't done it that way.
Mr. SMITH. Mr. Ice?
Mr. ICE. I just wanted to comment in my written testimony I discuss some of the consequences of the TMDL process and its impacts on State agencies. The State of Washington has done one of the most comprehensive reviews of just how much it is going to cost them to conduct their required TMDLs under a court decision. They estimate it is going to cost them $6.7 million annually for 15 years to conduct 600 plus TMDLs they have to do.
I think what was really telling about their assessment is they looked at what are the consequences to our other pollution control programs, what are we going to have to give up in order to implement this TMDL process? They will have to reduce nonpoint source technical assistance to landowners for nonpoint sources. They will have to reduce statewide and regional watershed reports. Watersheds are looked at as being a key to understanding how we manage water quality.
They will have to reduce timber practice watershed analysis, reduce water quality assessments, reduce technical assistance on lake protection and restoration, reduce technical assistance on groundwater protection, reduce aquatic pesticide management. So there are significant consequences in making these decisions.
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Mr. FOX. The State of Washington supports the rule. I would like to get that on the record. There are many ramifications if you do not come up with a new rule that would result in more litigation and more liability for the States.
Mr. SMITH. The suggestion of congenial meetings of give and take and changes to the rule, are there any general farm organizations or agricultural commodity organizations that have supported the proposed rule?
Mr. FOX. Not that I am aware of.
The CHAIRMAN. Mr. Goodlatte, Chairman of the subcommittee who has been dealing with this issue.
Mr. GOODLATTE. I want to thank you very much for holding this hearing on this important issue.
As you know, the subcommittee which I chair, the Department Operations and Forestry Subcommittee has held three hearings on this issue, one here in Washington and two field hearings, one in North Carolina and one in Arkansas. Regrettably we were going to have another hearing in my district in Virginia and my mishap caused us to cancel that hearing, so a number of folks prepared testimony for that hearing. I would ask unanimous consent that testimony be submitted and made a part of this record.
The CHAIRMAN. Without objection.
[The information appears at the conclusion of the hearing.]
Mr. GOODLATTE. This issue has been disturbing from the outset. We started out with an alarming concern about the cost of this, the impact on America's farmers, ranchers and foresters. Then we went to being concerned about the legality of this. I have no doubt that if the administration unadvisedly proceeds to release these final rules, that will be in litigation and that will result in harm to their cause which is also our cause of making sure the waters of the United States are cleaner. It will be similar to the experience they had with the Clean Air Act where they exceeded their authority on that, were rebuffed by the courts and have set back the legitimate efforts to make sure we continue to make progress on cleaner air.
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We then went to the disturbing development of the Department of Agriculture which has stood for America's farmers and ranchers vacating the very strong position they took expressing strong concerns about the implementation of these regulations and the cost of them to essentially caving on that issue.
We then went to the disturbing fact of finding that the so-called science they based these regulations on are completely unsound as evidenced by the good work done by the National Association of Foresters and the Association of State Foresters showing that not even a fraction of the impaired waterways that they claim to have identified caused by forestry have been impaired by forestry.
To the most recent disturbing developments about the manner in which they have gone about making last minute changes to the proposed rules. I would like to follow up Mr. Fox with the line of questioning begun by the Ranking Democrat, Mr. Stenholm.
It is my understanding that on May 19, several environmental organizations, including the National Resource Defense Council, sent Ms. Browner a letter in which they stated in part, ''Due to the problems we outline below, we are asking you to withdraw the current version of the proposed rule which is so fundamentally flawed that it would weaken the existing TMDL program. In addition, we are concerned that if the administration attempts to finalize this rule, the overwhelming opposition it faces in Congress could result in a weakening of the Clean Water Act itself.''
What meetings have you conducted with these environmental organizations since the receipt of that letter?
Mr. FOX. I might have to provide that for the record. I can tell you here that I have had regular sets of meetings with those organizations as well as a number of other organizations, as well as members of Congress about the rule since that letter was received. I would be happy to provide that.
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Mr. GOODLATTE. What minutes were kept of those meetings?
Mr. FOX. We docket virtually every meeting we have under rulemaking, including meetings with members of Congress that would include some notation as to the subject of the meeting. That would be part of the rulemaking docket.
Mr. GOODLATTE. Do you have minutes of those meetings that you can submit to the committee?
Mr. FOX. This is all part of the docket that we are preparing for the rulemaking. It will all be done when the rulemaking is completed. The term minutes implies perhaps a little more detail than normally goes into the docket for a meeting that I have.
Mr. GOODLATTE. Mr. Chairman, I would ask the committee make a formal request of the Administrator that she provide to us the records, whatever they may be, minutes or otherwise, of those meetings so we can examine exactly what they show took place.
The CHAIRMAN. Certainly the committee will do that.
Mr. GOODLATTE. In addition, I would like to know if you contacted these environmental organizations following receipt of this letter?
Mr. FOX. As part of my job, I have regular contact with lots of organizations.
Mr. GOODLATTE. Did you request a meeting with them as a result of receipt of this letter?
Mr. FOX. No, I did not, not to my knowledge but I need to check that history. I meet so frequently with a number of groups, I want to be completely accurate here.
Mr. GOODLATTE. What agricultural organizations have you met with and specifically discussed the TMDL rules since the receipt of the May 19 letter?
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Mr. FOX. Again, I would have to get that for the record. I don't know enough about my calendar to give you that precisely. I can tell you I have monthly meetings with about a dozen or so major agricultural groups. I don't know if that meeting happened since that May time period or not.
Mr. GOODLATTE. Is it correct in these meetings you discussed the ''fundamental flaws'' they identified in their May 19 letter?
Mr. FOX. I don't know which meeting of mine you are talking about.
Mr. GOODLATTE. Your meeting with the environmental groups?
Mr. FOX. I think I testified that I wasn't speaking specifically of any individual meeting. I am aware of their concerns, I certainly have had discussions with them about their concerns if that is your question. I don't know exactly which meeting you are referring to.
Mr. GOODLATTE. Subsequent to the meetings, a number of changes were made to the proposed rules. In fact, there were several last minute drafts floating around prior to your recent submission of the proposed rules to OMB, right?
Mr. FOX. We have been going through a drafting, changing process for the better part of 6 to 8 months, sir.
Mr. GOODLATTE. There have been additional drafts, more than one, since this letter was received from these environmental groups, correct?
Mr. FOX. Yes, sir. As I said, we are continually drafting and changing this rule since we proposed it.
Mr. GOODLATTE. Can you catalogue for the committee the changes you made to the proposed rules that address the so-called fundamental flaws identified by the environmental interest groups?
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Mr. FOX. As part of the docket for the rulemaking, all of those comments are addressed. We received approximately 35,000 comments on this rulemaking, including 30,000 post cards from the forestry industry. Every single comment we received has a response to it as part of the document that will be available to the public and committee when we finalize this rule.
Mr. GOODLATTE. It is my understanding now a number of these groups that had written to you expressing opposition to the issuance of these rules are now in support of the rules or leaning in the direction of supporting them. The National Resources Defense Council has a letter to you dated June 26 in which they state, ''Based on our review of the most recent draft of the proposed rule on June 19, the NRDC believes many of our concerns have been addressed. Overall, if finalized as it currently exists in draft from, the proposed rule will strengthen the TMDL program and provide greater support to the efforts of citizens, States and EPA to attain and maintain water quality standards. Of course the key to a successful TMDL program will be the degree of implementation and enforcement by the States and EPA.''
When a flaw is fundamental and a change is made that addresses that flaw, that would cause a kind of dramatic reversal of the NRDC's position. It is reasonable to assume that the change is significant.
Mr. FOX. You are asking me to characterize their characterization of my rule and I don't know that it is of much value for me to do that.
Mr. GOODLATTE. You can answer my question though. Is it reasonable to assume that? If somebody says it is a fundamental flaw and now we support it, that some kind of significant change had to take place in your proposed rules to bring that about.
Mr. FOX. All I can say is we have made a number of changes for the better part of many months in response to comments we have received. Many are significant, some would call them less than significant, some would call them technical. I don't know why you want me to characterize.
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Mr. GOODLATTE. You characterized it a second ago as being many are significant.
Mr. FOX. Sure. We dropped forestry, that I think is pretty significant. We reached agreement with USDA on a number of provisions.
Mr. GOODLATTE. I don't think the fact you dropped forestry is what caused the National Resource Defense Council to come to the conclusion that you had made improvements to their so-called fundamental flaws, would it?
Mr. FOX. You are asking me to comment on the NRDC and I don't work for them. I work for the U.S. Government.
Mr. GOODLATTE. All this suggest that a negotiation has taken place. When one side opposes what you do citing fundamental flaws and you then meet with that side and following that meeting you make significant changes to your position to the point that your opponent now becomes your ally, that suggests to me a negotiation?
Mr. FOX. I would have a different characterization.
Mr. GOODLATTE. Now that we have established you have had these meetings with these interest groups and the results, let me ask when you are going to provide producers, landowners, local governments and other groups throughout the country the same direct access to this decisionmaking process you provided to these Washington insiders?
Mr. FOX. They have always had that access.
Mr. GOODLATTE. I would beg to differ, especially within the last 38 days since that letter was sent to you on May 19.
Mr. FOX. That is your difference of opinion then.
Mr. GOODLATTE. You haven't cited to me any organization you met with and conducted a substantive discussion regarding the TMDL rules that would be of an agricultural or forestry advocacy type of group since that May 19 letter.
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Mr. FOX. I am happy to provide my calendar to this Congress, I have had a number of meetings since.
Mr. GOODLATTE. Can you name one organization?
Mr. FOX. Sure, the AFPA is one group I have talked with a good deal. The Farm Bureau attends my monthly meetings regularly, the conservation organizations attend, the Corn Growers, the Wheat Growers, the State Departments of Agriculture.
Mr. GOODLATTE. Did they provide language changes to you?
Mr. FOX. I am not aware of them providing language changes to me. AFPA gave me some clear recommendations I should drop language.
Mr. GOODLATTE. Did you ask for any specific changes at those meetings?
Mr. FOX. I have asked these groups every time I meet with them that I am happy to entertain any ideas they have for changes in the rule. I have made that perfectly clear.
Mr. GOODLATTE. Do the environmental groups give you language?
Mr. FOX. I don't know that. Certainly they came together with us with ideas. I am not sure if we have seen specific language. I don't know.
Mr. GOODLATTE. Would that be included in the notes or minutes you are going to provide to the committee?
Mr. FOX. I will have to check on that. Typically in these meetings we have been having with interest groups for the better part of 6 months starting with the States is that we describe the language sometimes in great detail as to what it covers and we get some reactions from them and then consider their comments and decide whether or not we want to make some changes. That is the kind of detailed discussion we have had with States, cities, with environmentalists and with other interests, the drinking water administrators.
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Mr. GOODLATTE. We will look forward to receiving those notes and the lists of those folks you have spoken to so we can hear from them how they feel they have been treated in this process relative to these environmental folks whom you did not conduct negotiations with you say but who have taken a fundamentally changed position on this issue compared to the fundamental flaws they identified 5 short weeks ago.
The CHAIRMAN. Mr. Ewing.
Mr. EWING. I was able to go to North Carolina for a similar hearing with Mr. Goodlatte maybe a month or so ago. I don't have specific questions but the point I want to make is to say that our Government works the best when it is done with the consent of those being governed. We don't have many contentious meetings in this room. I think it is unfortunate that some in the bureaucracy think they can force things down the throat of agriculture and do it without really caring what the results are.
There is a way to clean up our water. We are making progress and we should continue to do so but you can't do it through force. I think that is a message that ought to get back.
I would like to recognize Mr. Winstanley from Illinois and from Champaign and thank him for his testimony and his participation in this hearing. Your operation is highly respected. I have visited your facilities there and I appreciate your comments and the good work you do because we are very concerned about our water quality and want to keep it and make it continue to improve over the years.
Mr. Fox, why are you giving forestry a second shot at this and not the farmers? You are exempting forestry, right, but not farmers?
Mr. FOX. I tried to make clear, any agricultural nonpoint source pollution is exempt from any permitting enforcement actions under the Clean Water Act. Nothing in our rule would have changed that.
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Mr. EWING. I would yield to my colleague so we can be sure we get your answer under oath on the record.
Mr. GOODLATTE. I thank the gentleman for yielding. What prompted you to make the changes in the rule with regard to silvicultural practices?
Mr. FOX. We received a number of concerns in our comments from foresters around the country, from major trade associations and also from Members of Congress that felt this proposal wasn't well thought out.
Mr. GOODLATTE. You didn't get those same comments from various agricultural organizations as well and individual farmers?
Mr. FOX. Not specifically regarding the silvicultural provisions.
Mr. GOODLATTE. I am sure, you got it from them regarding how these rules would apply to their agricultural practices but you didn't make the same reservations, you didn't pull back from issuing rules related to agriculture that you did to forestry, why?
Mr. FOX. I don't know what you are comparing here. I think there is a little bit of comparing apples and oranges. The proposal for silviculture was very different in many ways than how we treat row crop agriculture and the rest of the proposal. It was something that was different from how the Agency proposed to deal with silviculture in the past and something we felt needed more time. I don't think there is quite the change of policy with respect to agriculture or concentrated animal feeding operations in our rule.
Mr. GOODLATTE. Is that the reaction you have gotten from those organizations? I think they think there is a pretty dramatic change.
Mr. FOX. I would respectfully beg to differ.
Mr. GOODLATTE. You wouldn't differ with my statement they believe these are dramatic changes for them?
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Mr. FOX. I am sure they believe these are dramatic changes.
Mr. GOODLATTE. You would say these were dramatic changes in terms of the folks in the forestry industry that you split off. Is there some political gain to attempting to divide the opposition to this, take care of one group but not another?
Mr. FOX. When I listen to Members of Congress or listen to interest groups, it is now a political reason for spinning it off, is that what you are suggesting?
Mr. GOODLATTE. I would ask whether the reason why forestry is being treated differently all of a sudden isn't related to a strategy to get these rules issued with as least opposition as possible.
Mr. FOX. As I explained and I will explain one more time, the rule deal with silviculture very differently than it dealt with other sources of pollution we had proposed at the time, an innovative proposal we thought to deal with the bad actors in silviculture that were creating problems, those that were potential point sources. Obviously that is a proposal that drew a lot of criticisms and concerns and the Agency believes we need more time to evaluate that.
The CHAIRMAN. We have a series of several votes and rather than coming back, we will relieve the witnesses and end the hearing. Let me say there will probably be a number of follow-up questions which we will be submitting. I appreciate your patience in the voting dilemmas we have had today.
Let me say in that regard, a letter dated June 26 supporting the bill, H.R. 4502, requesting that EPA drop its regulation proposal until the science study is known and there are 3 1/2 pages single-spaced of agricultural groups that have written that letter. We will be happy to provide that to the administration and the EPA.
Thank you very much for your attendance and the hearing is adjourned.
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[Whereupon, at 1:15 p.m., the committee was adjourned, to reconvene at the call of the Chair.]
[Material submitted for inclusion in the record follows:]
Testimony of J. Charles Fox
Good morning Mr. Chairman and members of the committee. I am Chuck Fox, Assistant Administrator for Water at the U.S. Environmental Protection Agency. I look forward to talking with you this morning about the Nation's clean water program and, more specifically, our efforts to identify polluted waters around the country and restore their health under the Total Maximum Daily Load or ''TMDL'' program.
I am very pleased that James Lyons, Under Secretary for Natural Resources and Environment at the U.S. Department of Agriculture (USDA) is joining me today. Over the past several years, EPA has worked closely with the Department of Agriculture and other Federal agencies and States to coordinate programs designed to protect natural resources and water quality.
In my testimony today I want to review the overall approach to water pollution control that we are implementing under the Clean Water Act and the Clean Water Action Plan. I want to describe how the TMDL program works and how we plan to improve the program. 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.
CLEAN WATER FOR THE FUTURE—THE CLEAN WATER ACTION PLAN
Twenty-eight years ago, the Potomac River was too dirty to swim in, Lake Erie was dying, and the Cuyahoga River was so polluted it burst into flames. Many rivers and beaches were little more than open sewers.
Enactment of the Clean Water Act dramatically improved the health of rivers, lakes and coastal waters. It stopped billions of pounds of pollution from fouling the water and doubled the number of waterways safe for fishing and swimming. Today, many rivers, lakes, and coasts are thriving centers of healthy communities.
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Despite this tremendous progress in reducing water pollution, almost 40 percent of the Nation's waters assessed by States still do not meet water quality goals. The States report that pollution from factories and sewage treatment plants has been reduced but remains a concern in many areas. Soil erosion and wetland losses impair or threaten the health of many aquatic systems. Pollution from a wide range of sources (e.g. storm water from city streets, agricultural lands, forestry operations, and others) degrade water resources. Fish in many waters contain unacceptable levels of mercury and other toxic contaminants. Beaches are too often closed due to poor water quality.
Several years ago, after taking a hard look at the serious water pollution problems around the country, the administration concluded that current implementation of the existing programs was not fully addressing serious water pollution threats to public health, living resources, and the Nation's waters.
In response to this concern, President Clinton and Vice President Gore announced, in February of 1998, an interagency effort to enhance existing clean water programs and speed the restoration of the Nation's waterways. The Clean Water Action Plan was the product of a cooperative effort by USDA, EPA, the Department of the Interior, the National Oceanic and Atmospheric Administration, the Army Corps of Engineers and others. It describes over 100 actions—based on existing statutory authority—that these agencies and others will undertake to strengthen efforts to restore and protect water resources.
The Action Plan is built around four key tools to achieve clean water goals.
A Watershed Approach—The Action Plan envisions an improved collaborative effort by Federal, State, Tribal, and local governments, the public, and the private sector to restore and sustain the health of the over 2,000 watersheds in the country. The watershed approach provides a framework for water quality management and is a key to setting priorities and taking action to clean up rivers, lakes, and coastal waters.
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Strong Federal and State Standards—The Action Plan describes how Federal, State, and Tribal agencies may revise standards where needed and make programs more effective. Strong standards are key to protecting public health, preventing polluted runoff, and ensuring accountability.
Natural Resource Stewardship—Much of the land in the Nation's watersheds is cropland, pasture, rangeland, or forests, and much of the water that ends up in rivers, lakes, and coastal waters falls on these lands first. Clean water depends on the conservation and stewardship of these natural resources. This Action Plan encourages Federal natural resource agencies, including the Department of Agriculture, to continue to support State and local watershed restoration and protection.
Informed Citizens and Officials—Clear, accurate, and timely information is the foundation of a sound water quality program. Informed citizens and officials make better decisions about their watersheds. The Action Plan encourages Federal agencies to improve the information available to the public, State and local governments, and others about the health of their watersheds and the safety of their beaches, drinking water, and fish.
USDA, EPA and others are making good progress in implementing the over 100 specific actions described in the Clean Water Action Plan. Congress has provided vital support to this work by appropriating critical funding, including doubling EPA's State grants for reducing nonpoint pollution to about $200 million.
A key accomplishment promoted by the Action Plan is completion of State assessments of watershed health and initiation of over 300 Watershed Restoration Action Strategies to restore polluted waters on a watershed basis. These Action Strategies are a tremendous tool for drawing together the diverse authorities and resources of local, State, and Federal agencies, along with the private sector, to restore watershed health.
Other accomplishments include a new BEACH Action Plan, a response plan for pollution threats to coastal waters, new regulations to control discharges of stormwater, new efforts to support establishment of riparian buffers, and a contaminated sediment strategy. We are also supporting efforts to protect water quality and wetlands on a watershed basis through ''watershed assistance grants'' and the five State grant program.
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The Clean Water Action Plan is a sound blueprint that brings the Nation's clean water programs into the new century. I ask, Mr. Chairman, that a copy of the second annual report of progress in implementing the Clean Water Action Plan be included as part of my testimony in the hearing record.
RESTORING AMERICA'S POLLUTED WATERS
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 Total Maximum Daily Load (TMDL) Program—Background. 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, develop lists of polluted waterbodies—waters that do not attain the water quality standards adopted by that State—every 2 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 8–13 year period.
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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.
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.
TMDL PROGRAM STATUS
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, 17 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.
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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.
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.
EPA already has taken a number of other significant steps to improve State progress in listing polluted waters and developing TMDLs. For example, in August 1997, EPA issued two policy memoranda providing guidance for State lists and requesting that States work to improve the pace of establishing TMDLs. In particular, EPA asked that States develop 8–13 year schedules for developing TMDLs for all listed waterbodies, beginning with the lists due April 1, 1998.
States have made very good progress developing lists of polluted waters. All States submitted 1998 lists and EPA has approved all but one of these lists. In a few cases, EPA added waters to a State list. These lists, and maps of each State's polluted waters, are available over the Internet at www.owow/tmdls.epa.gov.
In addition, the number of TMDLs developed by States and approved by EPA has been steadily increasing over the past several years. Between 1972 (when Congress passed section 303(d) as part of the Clean Water Act) and 1999, States and EPA established approximately 1000 TMDLs.
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Since October 1999, States have established, and EPA has approved, over 600 TMDLs for a variety of pollutants, including sediments and nutrients which are predominately caused by polluted runoff. Across the country, over 2000 TMDLs are now under development.
What Do the 1998 TMDL Polluted Waters Lists Tell Us?
The 1998 State lists of polluted waters tell us that the overwhelming majority of Americans—218 million—live within 10 miles of a polluted waterbody. Over 20,000 waterbodies across the country are identified as not meeting State water quality standards. These waterbodies include over 300,000 river and shore miles and 5 million lake acres. The size of these impaired waterbodies range from short sections of headwater streams to long sections of major rivers like the Mississippi and the Colorado.
Direct pollution discharges from sewage treatment plants and factories are the sole cause of pollution in about 10 percent of polluted waters. Another 47 percent are impaired by a combination of point source discharges and polluted runoff. The remainder are impaired by polluted runoff from diffuse or nonpoint sources. Some of the impairments are the result of ongoing discharges while others stem from historic or ''legacy'' problems resulting from past activities.
The pollutants most frequently identified as causing water quality impairment include sediments, excess nutrients, and harmful microorganisms. Metals, including toxics, also contribute to these impairments.
On average, there are about two pollutants identified for each of the impaired waters. This means that as many as 40,000 TMDLs may need to be done, although watershed approaches can be used to address many of these individual segments at the same time and in a coordinated manner for greater efficiency.
To better illustrate the story that the 1998 polluted waters lists tell, I have several maps and graphs—including a national map depicting the percent of impaired waters by watershed, and a bar graph indicating the leading reasons that waters do not meet their clean water goals—that I would like to enter into the record.
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PROPOSAL TO IMPROVE TMDL PROGRAM REGULATIONS
On August 23, 1999 President Clinton announced proposed revisions to the existing TMDL program regulations that will significantly strengthen the Nation's ability to achieve clean water goals and provide States, Territories, and authorized Tribes clearer direction for identifying and restoring polluted waters. In addition, EPA proposed changes to the Clean Water Act discharge permit program and the water quality standards program that complement the proposed TMDL regulatory revisions.
These regulatory revisions are mid-course changes to the existing program based on current data and first-hand, on-the-ground knowledge regarding the status of the Nation's waters. Moreover, the insights we gained from the Advisory Committee process provided guidance on constructive changes to the program.
TMDL Regulations—Key Elements. In developing the proposed TMDL regulations, EPA sought to 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;
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
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Assure a Strong Program Nationwide—EPA will establish lists of polluted waters and TMDLs where a State fails to do so.
Cooperation with Interested Parties Since Proposal
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.
The Clean Water Act provides that States have the lead in the identifying polluted waters and developing TMDLs. 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).
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, I met with Under Secretary for Natural Resources and the Environment, James Lyons, and we established a joint EPA/USDA workgroup to review concerns of USDA with the TMDL proposal.
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The USDA/EPA workgroup met on a regular basis for 3 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. I ask that a copy of the Joint statement be included in the record.
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. 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 $1.3 billion. The benefits that result from these and other assistance programs will be given due credit in the TMDL process.
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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.
REVIEW OF COMMENTS ON THE PROPOSED REGULATIONS
I want to assure you that EPA has fully, and carefully, reviewed the public comments on the proposed regulations. 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 IN FINAL TMDL REGULATIONS
Based on the comments we received on the proposed TMDL rule and on input from other interested parties, we have revised the proposal and expect to publish a final TMDL rule early this summer. Some of the key changes EPA expects to make to the rule are described below.
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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;
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).
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
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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 based on 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.
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, I 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 work closely with USDA and 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.
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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 year2001 budget.
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 (OMB), 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.
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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.
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.''
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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.
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.
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GAO Report on Economics. The GAO reviewed the economic analysis that the EPA did to support proposed revisions to existing regulations concerning the TMDL program and related Clean Water Act permit program regulations. The report concludes that EPA correctly interpreted the Regulatory Flexibility Act (RFA). However, EPA strongly disagrees with GAO's assertion that our analyses supporting our conclusions under Unfunded Mandates Reform Act (UMRA) were in any way deficient and the report wrongly concludes that EPA should have done more analysis under URMA. EPA provided a complete and accurate assessment of economic and other aspects of the proposed TMDL rule and this analysis adequately supported our determinations under UMRA and RFA.
It is highly inappropriate for the report to conclude that EPA did not fully comply with all the applicable analytical requirements, particularly when GAO notes in its report that nothing in UMRA's language, legislative history, or case law definitively addresses the areas that GAO disagrees with EPA. GAO may believe that it would have been desirable for EPA to have provided different or supplemental economic analysis of the proposed rule. While additional analysis is always possible, the time and cost of exploring all analytical avenues must be weighed against delay in the significant benefits to the Nation of a more efficient process to restore over 20,000 polluted waters and meet the goals of the Clean Water Act. In addition, the report overstates the uncertainties related to water quality data that I have discussed above and forestry practices
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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Report on America's Liquid Assets
EPA recently 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. Some of the findings of the report include:
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.
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.
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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.
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 in conjunction with 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).
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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.
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.
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,1 to restore the Nation's polluted waters. I will be happy to answer any questions.
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Statement of John Barrett
My name is John Barrett, I am a fifth-generation cotton and grain farmer from Edroy, Texas. I appreciate the opportunity to appear before to this committee on H.R. 4502 and EPA's proposed revisions to the water quality planning and management regulation. My comments will address H.R. 4502, the Water Pollution Program Improvement Act of 2000 and EPA's proposed rulemaking to revise the regulations implementing the Total Maximum Daily Load (TMDL) program. I will briefly highlight several areas of interest and concern to agriculture.
THE WATER POLLUTION PROGRAM IMPROVEMENT ACT OF 2000, H.R. 4502
I strongly endorse the approach to nonpoint source water quality issues in H.R. 4502. The legislation recognizes the lead role for states, localities and individual landowners to implement effective nonpoint source programs. Farmers, ranchers and foresters know that water quality can be protected and improved with the use of proper conservation and best management practices. Currently, voluntary, incentive-based stewardship programs cover millions of acres of farmland, forests, and rangeland and protect water quality. Rule driven, regulatory approaches that ignore local conditions and needs are not the approach that will be effective or welcome to protect nonpoint source water quality. Additional financial and technical assistance for current programs is needed to ensure the continued protection of natural resources and productivity.
I also believe that it is necessary for further study of the use of Total Maximum Daily Loads as a method to improve water quality from point and nonpoint sources. The current EPA TMDL rule proposal could undermine ongoing State nonpoint source programs and impose large costs on States and landowners. The brief 18-month delay in the proposed rule is certainly reasonable in order to achieve a workable approach for nonpoint sources to protect water quality.
A recent General Accounting Office (GAO) report shows that States do not have the scientific data necessary to develop TMDLs for nonpoint source impaired waters. States must collect reliable water quality monitoring data to improve their Clean Water Act (CWA) section 303(d) lists in order to direct resources to real problems.
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An effective nonpoint source water quality program must be based on sound science, accurate data, Federal, State and local partnerships, and properly funded non-regulatory approaches to protect and improve water quality. For these reasons I strongly support H.R. 4502.
EPA'S TMDL PROPOSAL
The proposed regulations are contrary to congressional intent
The proposed regulations empower EPA to regulate nonpoint sources of pollution through the TMDL program. Congress did not intend for EPA to possess such power. Congress made a conscious decision to treat point and nonpoint sources differently and separately in the CWA. Point sources are directly regulated by EPA through effluent limitations and a permitting system. By contrast, nonpoint sources are managed by the States through Federal grant programs that encourage States to develop nonpoint source management plans.
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 will be telling farmers and ranchers how and when they can harvest their crops and use their land. Cities can regulate land use, some counties can regulate land use, States can do it within limits, but the Federal Government needs unambiguous statutory authority to regulate land use. By this I mean Congress passing a law, not the EPA administrator writing a regulation.
The proposed regulations set unattainable standards. Congress elected to treat point and nonpoint sources distinctly 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. Many environmental groups have long argued that a TMDL has to be just what it says it is—an enforceable DAILY load. 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. As Congress recognized in 1972, while nonpoint sources can be managed ''to the extent feasible,'' they cannot be expected to meet any quantifiable daily load limitations.
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The proposed regulations are impractical. In its zeal to redefine nonpoint source runoff as a ''discharge'' subject to 303(d), EPA is attempting to drive a square peg into a round hole. The Federal section 319 Nonpoint Source Program merely encourages States to reduce pollution ''to the maximum extent practicable'' through best management practices (BMPs). Section 303(d) has a different bar. Compliance with section 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 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. Sufficient resources must be devoted to the TMDL development process in order to provide scientifically adequate input parameters and robust stakeholder involvement in the entire process. EPA should revise its standard to require States to establish quality assurance/quality control (QA/QC) programs to ensure the reliability of water quality data on which listing decisions and TMDL calculations are based. 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 cover pollution as well as pollutants. The statute requires the listing of waters for which technology-based effluent limitations—which govern the discharge of pollutants—are not stringent enough to meet water quality standards. The statute requires TMDLs ''for those pollutants which EPA identifies . . . as suitable for such calculations.'' Placing ''pollution'' impaired waters on the section 303(d) list can only increase confusion among States and the public over the function of the TMDL program.
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The proposed regulations allow EPA to designate nonpoint sources as point sources. The proposed regulations allow EPA to designate nonpoint sources as point sources. They propose to regulate nonpoint sources and livestock activities for such practices as harvesting, pest 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 into private activities and overrides State and private control of land-use decisions.
Agriculture is willing to be a part of reasonable and lawful water quality management programs. Agriculture is working at every level to ensure that farmers and ranchers are up to speed on water quality standards and monitoring programs. Farmers and ranchers are engaged in activities and practices to improve and protect water quality. Conservation tillage practices are being used on more than 60 percent of our Nation's farmland, saving hundreds of millions of tons of topsoil annually. Over 600,000 miles of conservation buffers have been installed on farms. Thirty-six million acres are being protected through the Conservation Reserve Program. Voluntary nutrient management plans are prepared annually by USDA's Natural Resources Conservation Service for approximately 10,000 farms.
The process to protect water quality must be reasonable My experience as a member of a National Estuary Program Management Conference and as a participant in the development of a complex and contentious TMDL have convinced me that the only workable solution to watershed management is the ''bottoms up'' approach as opposed to ''command and control.''
Over the decades farm and ranch families have achieved extraordinary conservation gains through voluntary, incentive-based programs to conserve fragile soils, wetlands, protect water quality and wildlife habitats. I believe that EPA's current effort to expand the scope of regulation will not effectively or efficiently improve nonpoint source water quality I believe 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—farmers, ranchers, and foresters. I strongly endorse H.R. 4502 and its approach of supporting the efforts of our Nations landowners to improve water quality.
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Testimony of Peter F. Guerro
Mr. Chairman and members of the committee:
We are pleased to be here to discuss our recent analysis of economic and compliance issues associated with two recently proposed rulemakings by the Environmental Protection Agency intended to strengthen its Total Maximum Daily Load Program. The TMDL program is intended to ensure that the Nation's waters meet water quality standards. TMDLs are used to restore water quality by identifying how much pollution a body of water can receive and still meet its standards. The amount of pollution entering the water is then reduced to that level.
TMDLs were first required by the Clean Water Act in 1972. EPA first issued regulations governing states' development of TMDLs in 1985 but did little to ensure that States enforced them. In recent years, lawsuits alleging inaction by EPA and the States have spurred increased attention to the development of TMDLs by imposing judicial deadlines on some states. Nonetheless, only about 1,300 of the up to 40,000 TMDLs estimated as needed to clean up the Nation's polluted waters were approved by EPA through fiscal year 1999.
EPA's TMDL proposal is actually comprised of two parts. The first part (the TMDL regulation) would add requirements to clarify and strengthen how waters requiring TMDLs are identified, and would provide more specific requirements as to how TMDLs are developed. Specifically, the proposal would include requirements for implementation plans and other provisions intended to help ensure that pollutant reduction allocations in a TMDL will be implemented so that water quality standards will be attained and maintained.
The second part (the NPDES regulation) would revise EPA's National Pollutant Discharge Elimination System program that controls the discharge of pollutants from ''point'' sources of pollution (e.g., industrial facilities and municipal wastewater treatment plants that discharge pollutants through a pipe). The revisions would expand EPA's authority to issue permits in certain circumstances. It would also require new large or significantly expanding facilities to obtain offsetting reductions in discharges from other facilities releasing pollutants into a polluted body of water before these new or expanding facilities can begin discharging into those waters. In addition, the revisions would allow, under certain circumstances, the use of point source discharge permits to control pollution from certain agricultural and silvicultural activities that have generally been treated as ''nonpoint'' sources. These revisions are intended to help States and EPA in developing and implementing TMDLs, and hence were issued at the same time as the proposed TMDL regulation.
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Certain statutes governing Federal rulemaking activities generally require EPA to evaluate the economic impacts of proposed regulations such as the two proposals discussed at today's hearing. Specifically, the Regulatory Flexibility Act requires an agency to prepare an ''initial regulatory flexibility analysis'' if it determines that a proposed regulation will have ''a significant economic impact on a substantial number of small entities'' such as small businesses and small governmental jurisdictions. In addition, if on the basis of a preliminary analysis an agency determines that a proposed regulation includes a Federal mandate that may result in annual expenditures of $100 million or more by state, local, and tribal governments in the aggregate, or by the private sector, the Unfunded Mandates Reform Act of 1995 requires more detailed analyses of costs, benefits, and alternatives. A similar directive is imposed on agencies by Executive Order 12866.
On the basis of its economic analyses, EPA concluded that neither proposed regulation would result in expenditures by governments and the private sector in excess of $100 million in any one year, and therefore did not conduct more detailed analyses under the Unfunded Mandates Reform Act. With respect to the Regulatory Flexibility Act, EPA determined that because neither proposed regulation directly regulates small entities, neither would have a significant economic impact on a substantial number of small entities. As requested by the House Committee on Transportation and Infrastructure, our report assessed (1) the reasonableness of EPA's economic analyses for the two proposed regulations and (2) whether EPA's determinations under the Unfunded Mandates Reform Act of 1995 and the Regulatory Flexibility Act were adequately supported.Clean Water Act: Proposed Revisions to EPA Regulations to Clean Up Polluted Waters (GAO/RCED-00-206R, June 21, 2000).
In summary, Mr. Chairman, we found the following:
Limitations with EPA's economic analyses of the proposed regulations for the TMDL and NPDES programs raise questions about their reasonableness and about the determinations that EPA has based on them. Of particular consequence, the outcomes of the analyses were heavily influenced by a number of key assumptions. Among the most important of these assumptions was that States are essentially in full compliance with current regulations, or will be as a result of existing statutory and regulatory requirements. Therefore, EPA included in its estimate only the costs that would result from the new requirements in the proposed regulations and not the costs of doing TMDLs generally. However, compliance with existing TMDL regulations has been problematic, and future compliance in the absence of the proposed regulation is uncertain. We found similar uncertainties with key ''baseline'' assumptions that affect the cost estimates associated with the proposed NPDES regulation. Another key limitation of the analyses was that they did not sufficiently recognize that the key water quality data available to EPA to identify the number of waters not meeting standards (and, hence, the number of TMDLs that will be needed) are incomplete, inconsistently collected by states, and sometimes based on outdated and unconfirmed sources. As a result of these limitations, EPA's cost estimates are subject to substantial uncertainty. Under these circumstances, it would have been appropriate for EPA to assess the effect of different assumptions on the Agency's cost estimates. Had it done so, the Agency would likely have produced a range of possible costs exceeding those included in its analyses.
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Given the uncertainties surrounding EPA's cost estimates, we disagree with EPA that the Agency's analyses adequately supported its determinations under the Unfunded Mandates Reform Act of 1995 that more detailed analyses of costs, benefits, and alternatives were not needed for either of the proposed regulations. However, in the case of the requirements for additional analyses under the Regulatory Flexibility Act, case law supports EPA's determination that because its proposed revisions to both regulations do not directly regulate small entities, additional analyses were not required.
BACKGROUND
The primary changes in EPA's proposed revisions to its TMDL regulations include requiring the States to (1) establish a more comprehensive listing of waters that do not meet standards, (2) consider specific factors when prioritizing their listed waters, (3) develop TMDLs within 15 years once a water is listed, (4) include 10 specific elements in a TMDL, and (5) develop implementation plans that include 8 elements such as demonstrating ''reasonable assurance'' that a TMDL will be implemented. The reasonable assurance requirement is intended to help ensure that pollutant reduction allocations in a TMDL will be implemented so that water quality standards will be attained and maintained. This means that for point sources, States will issue enforceable NPDES permits and for nonpoint sources (such as farms), States must demonstrate that controls are likely to be implemented, such as through State programs requiring the use of ''best management practices.''
EPA estimated the annual cost that States would incur in implementing the proposed TMDL revisions to be between $10.3 million and $24.4 million per year (in 1999 dollars) from 1999 through 2015. The agency estimated costs for developing implementation plans ($5.3 million to $14.3 million per year); administrative costs to the States resulting from public participation requirements ($4.8 million to $9.5 million per year); and administrative costs to EPA for tasks such as reviewing implementation plans (about $18,000 annually). The amounts do not include costs to meet current regulations, consent decrees, and commitments States have made to EPA for developing TMDLs within a specified time period.
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The primary changes to the NPDES program include requiring new large (or significantly expanding) dischargers to obtain an ''offset'' of up to 1.5 times their proposed discharge before releasing pollutants into an impaired water; giving States and EPA, under certain circumstances, discretionary authority to require dischargers of stormwater from forestry activities to have a NPDES permit; and giving EPA authority to designate certain sources (including some animal feeding operations and aquatic animal production facilities) as needing NDPES permits in cases where EPA develops a TMDL. The proposed NPDES regulation would also provide EPA authority to object to (and ultimately reissue) expired and state-issued permits that have been administratively continued for dischargers to impaired waters in NPDES-authorized states, where there is no TMDL or where the permit contains limits that are inconsistent with a TMDL.
EPA estimated the annual costs to private entities and Federal and State governments in implementing the proposed NPDES regulation to be between $17.2 million and $65.2 million per year (1999 dollars) from 1999 to 2015. The major areas in which EPA estimated costs were for the construction industry and other storm water dischargers to obtain offsets ($11.33 million to $41.76 million per year); for the silvicultural industry to implement pollutant controls ($3.45 million to $12.93 million per year); for animal feeding operations and aquatic animal production facilities to implement pollutant controls ($1.92 million to $9.58 million per year); and for Federal and State governments' administrative costs ($0.515 million to $ 0.964 million per year).
Limitations in EPA's Economic Analyses Raise Concerns About the Usefulness of its Cost Estimates
We found limitations with EPA's economic analyses of the proposed regulations for the TMDL and NPDES programs that raise questions about their reasonableness and about the determinations that EPA has based on them. Some of these limitations are common to both of the analyses. Such is the case, for example, regarding EPA's use of water quality data that are incomplete and in some cases unreliable. Other limitations are more specific to the individual analyses. As a result of these limitations, EPA's cost estimates are subject to substantial uncertainty. Under these circumstances, it would have been appropriate for EPA to assess the effect of different assumptions on the Agency's cost estimates.
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EPA's Economic Analysis of the TMDL Proposal
We identified several limitations of EPA's economic analysis for the Agency's proposed TMDL regulation that raise questions about its usefulness for decision-making. The most significant of these relate to EPA's assumption of full compliance with existing regulations and the Agency's use of key water quality data that are of limited quality. Other limitations include the use of unverified information, the exclusion of private sector costs and costs to other Federal agencies, and a limited analysis of benefits and discount rates.
Assumption of Full Compliance.
In our view, the most significant limitation of this analysis is its assumption that States are, or will be, in full compliance with existing regulations. The practical effect of this assumption on EPA's cost estimate is that the Agency did not include costs associated with states' implementation of current TMDL regulations; it only included costs associated with the specific changes and additions to the TMDL program set forth in the proposed regulation. For example, EPA estimated the costs of developing implementation plans and for additional public participation requirements that are not currently required but are in the proposed regulation.
EPA believes that full compliance with existing regulations is a reasonable assumption in this case since at the time of its analysis (Dec. 1998), there were consent decrees in 11 States to enforce existing TMDL requirements and pending litigation in another 15 states. EPA officials also told us that the likelihood of future lawsuits would be sufficient to ensure that all States will be in compliance with existing regulations at some point in the future. In addition, EPA cited the fact all States have submitted comprehensive schedules to EPA stating when they would develop TMDLs for their impaired waters. Agency officials said this was further evidence that full compliance was a reasonable expectation.
Nevertheless, it is clear that substantial noncompliance exists with current TMDL regulations, and there is uncertainty as to if, and when, States will achieve full compliance. Indeed, one of the stated purposes of the proposed TMDL regulation is to strengthen the existing program. Among other things, the proposed regulation would require States to develop TMDLs within 15 years of listing impaired waters, and would require reasonable assurance that controls will be implemented so that water quality standards will be attained and maintained.
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Absent the proposed revisions to EPA's regulations, full compliance with the existing program's requirements is uncertain. For example, only about 1,300 of the up to 40,000 TMDLs that EPA estimates are needed had been developed by the end of 1999. Moreover, the litigation record indicates that not all lawsuits have resulted in consent decrees; a few of the existing decrees addressed only a subset of the waters in the state; and not all States have pending lawsuits. Furthermore, the commitments that many States have made to EPA to develop TMDLs within a certain time period are non-binding, and their fulfillment will likely depend on the availability of State funding. Given that funding for water quality management programs has been documented to be significantly less than needed, and that TMDL development competes with other priority activities (such as NPDES permitting and enforcement), we believe it is uncertain as to when States will be able to develop all needed TMDLs.
Uncertainties about compliance with existing regulations are addressed in both the OMB's ''Best Practices'' (for conducting economic analyses) and EPA's economic guidance. Both acknowledge that full compliance is often not a reality and that the degree of compliance with existing regulations can significantly affect the results of the analysis. In addition, both documents state that an agency's economic analysis should consider the way the world would look absent the proposed regulation (referred to as the ''baseline'') and that many factors may influence this scenario—including the degree of compliance with existing regulations. EPA's own guidance for conducting economic analyses states that, if noncompliance is known, then the economic analyses should consider both the costs of achieving full compliance with existing regulations as well as the costs of achieving full compliance with proposed regulations.
Limitations of Water Quality Data
Another limitation that directly affects the cost estimate for the proposed regulation is that EPA relied on water quality data that are known to be of limited quality. Specifically, EPA relied on data from states' ''303d'' lists regarding the number of waters that do not meet standards and which may therefore require TMDLs. These data represent only a portion of the Nation's waters, are collected inconsistently by states, and may be based on outdated or unconfirmed information. For example, our recent report, Water Quality: Key EPA and State Decisions Limited By Inconsistent and Incomplete Data (GAO/RCED–00–54) noted that only six States had a majority of the data they needed to fully assess their waters and less than half the States had a majority of the data needed to determine whether they should list waters they have assessed. While the economic analysis of the TMDL proposal acknowledges that additional waters needing TMDLs will ''undoubtedly'' be identified, EPA did not estimate costs for developing TMDLs for these waters.
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Other Limitations
Unverified Data. EPA based its cost estimate for preparing a TMDL implementation plan on information obtained from one State official. However, the Agency did not verify whether this information was representative of all states. As a result, EPA's cost estimate for developing these plans may not be representative of costs likely to be incurred by other states.
Costs to the Private Sector. EPA did not include the costs that certain private sector entities will likely incur as a result of the proposed regulations because, according to agency officials, these costs would be incurred anyway under existing regulations and/or these entities will voluntarily implement controls. However, the proposed regulation includes new provisions that emphasize TMDL implementation by requiring implementation plans and ''reasonable assurance'' that pollution control activities will achieve their intended result. As a result of states' implementation of the reasonable assurance requirement, nonpoint sources such as farms will likely incur costs to control discharges to waters that they may not have incurred under existing regulations. Officials from the U.S. Department of Agriculture (USDA) told us that they believe the private sector will incur additional costs as a result of the proposed regulation.
Costs to Other Federal Agencies. EPA did not include costs that other Federal agencies might incur as a result of the proposed regulation. Of particular note, USDA officials told us that their workload may increase as a result of the proposed regulation for such activities as providing technical support to EPA, states, and farmers.
Analysis of Benefits. EPA did not quantify (and monetize) the proposed regulation's benefits and, as a result, its analysis does not indicate whether the expected benefits of the regulation outweigh expected costs. EPA officials said that because the proposed regulation was not economically significant (i.e., would not have an annual effect on the economy of $100 million or more) they did not believe they were required to quantify the benefits of the proposed regulation. Instead, qualitative benefits were briefly mentioned in the proposal for the regulation. Although EPA's proposed regulation may well have benefits, without a monetary estimate of both the benefits and costs, one cannot confirm that the regulation is economically justified (i.e., that it would have positive net benefits).
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Executive Order 12866 states that agencies shall assess both the benefits and costs of significant regulatory actions, regardless of whether the regulation is economically significant. EPA's proposed regulation was deemed significant by the Agency because it addressed ''novel legal or policy issues.'' In addition, OMB officials told us that, ideally, Federal agencies should assess both benefits and costs of proposed regulations to compare the net benefits of alternative regulatory actions.
Analysis Did Not Sufficiently Account for Uncertainty
In light of the uncertainty associated with several of EPA's key assumptions and data, we believe that sensitivity analysis to assess the effect of alternative assumptions would have been appropriate. For example, given the uncertainty associated with future compliance by States with existing TMDL regulations, an analysis of the effect of alternative compliance rates on the cost estimate would have been particularly useful. Such analyses would likely have indicated a range of possible costs exceeding those estimated by EPA.
EPA's Economic Analysis of the NPDES Proposal
We also found key limitations in EPA's analysis of its proposed NPDES regulation. Two key limitations are that the analysis (1) used water quality data that are in some cases incomplete and unreliable and (2) assumed that Federal agencies and most States have, or will have, enforceable authorities to control discharges from silvicultural operations. We have also identified other limitations that, taken together, indicate that the EPA cost estimates associated with this proposal are subject to substantial uncertainty.
Limitations of Water Quality Data
As in the case of its analysis of the TMDL regulation, EPA's analysis of the NPDES regulation relied on water data of limited quality. Specifically, EPA used data from its National Water Quality Inventory to estimate the number of currently-impaired waters and the number of ''offsets'' required for new large or significantly expanding facilities (e.g., construction sites). It also relied on these data to estimate the number of permits needed to control discharges from silvicultural activities, animal feeding operations, and aquatic production facilities designated as point sources. As noted earlier, we recently reported that reliance on these data would likely lead to an underestimate of the number of impaired waters requiring TMDLs because so few waters have been assessed. EPA's estimate does not include the additional costs to firms required to obtain offsets or permits as additional impaired waters are identified.
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Federal and States' Authority Assumed to be Adequate
EPA assumed that existing authorities would be sufficient to control discharges from silvicultural activities on public and private lands in most states. However, this assumption is subject to substantial uncertainty. For example, EPA assumed that 30 States have, or will have, adequate enforceable authorities over silviculture, and that these States would therefore incur no costs as a result of the regulation. However, EPA's proposed regulation did not specify the types of controls that would be adequate to control silvicultural sources of pollution. Without such information, State foresters and forestry experts expressed concern to us that costs could be incurred as a result of additional control requirements. Their views are supported by data from EPA's National Water Quality Inventory, which indicate uncertainty as to whether current State programs effectively control discharges from silvicultural sources. In particular, some of the States with existing authorities to control silvicultural pollution have waters currently listed as impaired by silviculture, although it is unclear whether these impairments are a result of ineffective controls, lack of enforcement, or poor practices before the authority was established.
Other Limitations
Costs of Delay in Obtaining Offsets. EPA did not account for the potential cost of delay that a firm may incur in obtaining offsetting pollutant reductions needed from other firms discharging to the same impaired water. Although EPA's analysis recognized that delay is possible, it assumed these firms would be able to purchase an offset by the time the facility construction or expansion project is approved (about 3 years). However, the market for nonpoint source offsets is not well defined and there has been minimal trading to date. Thus, there is some uncertainty as to whether firms will be able to purchase offsets, and any delay in time required to purchase offsets could impose additional costs on the firm.
Private Sector Costs. EPA's analysis does not account for the added costs to the private sector associated with more aggressive implementation by States of their existing authority. According to EPA, States will avail themselves of all existing authorities before using burdensome and costly NPDES permits. If this were true, this would create an added incentive for the States to implement their existing authorities more aggressively. Accordingly, more aggressive implementation would impose control costs on silvicultural, animal feeding, and aquatic production operations that would result from the proposed regulation.
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Omitted Silvicultural Activities. EPA's estimate of the cost of applying best management practices for silviculture is based primarily on the volume and acres of timber harvested in counties with impaired waters. Although the proposed regulation States that a post-harvest activity, such as preparing the site for replanting, may cause significant adverse impacts on water quality, EPA did not estimate the costs of controlling pollution from these activities. Also, the cost of controlling discharges associated with pest and fire control activities were not included.
Benefits. EPA did not quantify (or monetize) benefits associated with the NPDES proposed regulation. The agency briefly discussion the proposal's benefits in the preamble to the regulation. As in the case of the TMDL regulation, although the proposed regulation may well have benefits, one cannot confirm that it is economically justified (i.e., that it would have positive net benefits) without a monetary estimate of both the benefits and costs.
Analysis Did Not Sufficiently Account for Uncertainty
Given the uncertainty associated with several of EPA's key assumptions and data, we believe that sensitivity analysis to assess the effect of alternative assumptions and data would have been appropriate. In particular, given the uncertainty associated with future listings of impaired waters and, hence, the number of TMDLs needed, we believe that assessing the effect of additional future listings on the number of NPDES permits and associated costs would have been useful. Had such sensitivity analyses been undertaken, they would likely have indicated a range of possible costs exceeding those estimated by EPA.
Analyses Do Not Support EPA's Determinations Under the Unfunded Mandates Reform Act
Given the uncertainties surrounding EPA's cost estimates, we do not believe that the Agency has established that the annual costs of its proposed regulations will not exceed $100 million. Accordingly, we disagree with EPA that the Agency's economic analyses adequately supported its determination under the Unfunded Mandates Reform Act that more detailed analyses of costs, benefits, and alternatives were not needed for either of the proposed regulations.
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In the case of the requirements for additional analyses under the Regulatory Flexibility Act, case law supports EPA's determination that because its proposed revisions to both the TMDL and NPDES regulations do not directly regulate small entities, additional analyses were not required. Specifically, several court decisions discussed in our report have ruled in analogous situations that agencies' regulations were not subject to the Regulatory Flexibility Act's requirements for additional analysis.
Observations
Our major disagreement with EPA regarding its economic analyses was with its assumption of full compliance, the effect of which was to exclude any costs to be incurred by States that have yet to meet the requirements of the existing program. In excluding these costs, we believe EPA has underestimated the costs of implementing the proposed regulations. However, the larger issue is that regardless of whether one attributes the costs to develop and implement TMDLs to the existing or proposed regulations, an indisputable fact remains—the costs to develop and implement TMDLs will be substantial. In addition, as we recently reported, States need more comprehensive data on water quality to both ensure they adequately identify impaired waters and to develop the TMDLs themselves.
This concludes our prepared statement, Mr. Chairman. We would be pleased to address any questions that you or other Members of the committee may have.
Testimony of George Ice
Good morning, Mr. Chairman and members of the committee. My name is Dr. George Ice. I am a principal scientist with the National Council for Air and Stream Improvement. I am testifying on behalf of the Society of American Foresters (SAF) in my position as chair-elect for the Water Resources Working Group. I am an SAF Certified Forester and registered as a professional hydrologist by the American Institute of Hydrology. I have more than 25 years in research and experience with forestry and water quality.
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SAF has expressed to EPA its opposition to the proposal to reclassify forestry as a point source. EPA had argued that this is necessary because forestry is a substantial contributor to the number of waterbodies identified by States as impaired. This contradicted our understanding of forest management and its impact nationwide on water quality. Because of these concerns SAF joined with the National Association of State Foresters (NASF) in a review of the list of silviculturally impaired waterbodies sent by EPA to the Subcommittee on Department Operations, Oversight, Nutrition, and Forestry, chaired by Bob Goodlatte. What we found is that the information provided to this committee was not the most current nor an accurate representation of the contribution of forest management to water quality impairment. I would like to summarize the findings of this review for the committee and then address five key questions: does the U.S. Environmental Protection Agency (EPA) proposal make sense technically; has the forestry community been especially slow in responding to water quality protection needs; are the proposed actions efficient and cost-effective; would the proper agencies be involved; and what are the potential future consequences?
REVIEW OF THE WATERBODIES LISTED AS IMPAIRED BY SILVICULTURE
In response to a request by Chairman Goodlatte of this committee, EPA prepared and delivered a list of silviculturally impaired waterbodies. This list of 1,040 waterbodies was developed by EPA from the 1998 national summary of State 305(b) reports (which describe the condition of water quality in each state). The list was used to support the need for reclassification of forestry as a point source, potentially making individual silvicultural operations subject to National Pollution Discharge Elimination System (NPDES) permits. SAF and NASF felt that a closer look at this list was needed, considering the consequences of this proposed action. As a result NASF requested that each State forester whose State had waterbodies on the list provide information about the history of those waterbodies. The SAF Water Resources Working Group took the lead in summarizing the information and preparing a report. What SAF and NASF found surprised even us.
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The EPA list sent to Chairman Goodlatte included only those States that did not have comprehensive enforceable authorities and that had identified silviculturally impaired waterbodies in their 1996 305(b) reports. For these 18 states, the 1,040 waterbodies represented 17 percent of the waterbodies identified by States in their most recent 303(d) lists. These waterbodies are identified by the States as needing more stringent protection and are subject to development of Total Maximum Daily Load limits (TMDLs). But even this was an overestimate of the actual contribution from forest management.
About 48 percent of the 1,040 waterbodies on the EPA list are not named in the most recent State 303(d) lists.
Another 37 percent of the waterbodies were listed based on inadequate or outdated information or personal observation (evaluated), not credible water quality measurements.
While silviculture can be a source of impairment it is often not the primary source of impairment.
In some cases, the pollutant could not possibly be related to normal forestry activities.
This review points out that the water quality information being presented to Congress is often anecdotal and without any quality assurance requirements. In some cases, expectations of Federal watershed funding led States to pad their lists, based on possible rather than realized water quality problems. States that have required credible data have found a dramatic drop in the number of waterbodies listed as impaired, allowing those States to focus their limited resources on real problems.
There is also uneven reporting by states, making it difficult for EPA and others to interpret the results for national 305(b) reports and 303(d) summaries. Some States identify silviculture as a general nonpoint source of pollution; other States break out logging roads, harvesting, slash disposal, and chemical applications; others don't identify silviculture as a pollution category at all.
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The information available is often not the most current or easily interpreted. The national 305(b) report summaries are generally compiled 2 years after the State reports. These State reports may be based on lists prepared even earlier for the 319 program. EPA does maintain a web site of information on State 303(d) lists but these are not always complete, do not provide consistent information for each waterbody, and may not be the most current lists. Montana provides an excellent example of a State that does maintain a web site with a current list of impaired waterbodies and easily accessible information on each.
In summary, we found that the information about waterbodies impaired by silviculture does not stand up to close scrutiny. Of the 1,040 waterbodies on the list to Congress, 496 were removed based on the most recent State 303(d) lists, 383 of the waterbodies listed were based largely on evaluated data, and for 77 waterbodies silviculture was not a the primary source of water quality impairment. Leaving only 84 that might be impacted by silviculture. Even for these, other activities may contribute or even be the primary source of impairment.
Frankly, the request for information about the impaired waterbodies list elicited a lot of frustration by State agency personnel about EPA oversight of nonpoint source programs. Many were frustrated with EPA guidance to include waterbodies identified as impaired based on old assessments and inadequate data. Perhaps this frustration was summarized best by Howard Markus with the Minnesota Pollution Control Agency. He stated that, ''Minnesota has significant nonpoint source pollution problems, and it may have some silvicultural nonpoint source pollution, but none of the impaired waters in the State can be linked to silviculture.''
An Executive Summary of the report is attached.
Does the EPA proposal make sense technically? Should forestry be considered a point source?
In the 1972 Federal Water Pollution Control Act Amendments, Congress made a distinction between point and nonpoint sources of pollution. I believe this distinction was inspired because it recognized how differently these sources of pollution needed to be treated. These terms have been widely accepted in subsequent legislation and regulation and by the scientific community. The 1998 SAF peer-reviewed Dictionary of Forestry defines nonpoint source pollution as ''pollution that arises from an ill-defined and diffuse source, such as runoff from cultivated fields, agricultural lands, urban areas, or forests and wildlands'' (Helms 1998). Some broad generalizations about the differences between point and nonpoint sources are:
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Point sources can include products of manufacturing while nonpoint sources are often natural materials such as sediment, heat, and nutrients. At some concentration or level, these materials and energy are essential to the health of stream systems.
Point sources tend to produce pollution loads which, if untreated, are far in excess of what would occur naturally, while pollution levels produced by nonpoint sources, especially from any single activity and where appropriate control practices are used, are relatively low and usually within the historic range of variability.
Point sources are usually more easily identified, less numerous, and are persistent and stationary. Nonpoint source are diffuse and difficult to identify, more numerous, have impacts that tend to diminish over time (not persist), and move around the landscape.
Certain forest operations are clearly defined as point sources (rock crushing, gravel washing, log sorting, and log storage facilities) while the majority of activities are considered nonpoint sources. The nature of forest management is to have rotations or cutting cycles at any one location; practices may include harvesting, site preparation, crop tree release practices, thinning, and other silvicultural treatments. These are usually separated by prolonged periods without management disturbance. These activities move over the landscape. Best management practices (BMPs) are designed to minimize impacts from various forestry activities before the occurrence of forcing hydrologic events (e.g. major floods). So while point sources can be easily identified and monitored over prolonged periods and can have elaborate control technologies established, nonpoint sources are constantly changing in their condition and position. Forest nonpoint sources are best controlled by installing preventive BMPs during forest operations rather than by responding to problems after they occur.
Today there is as much debate about how to supply critical materials (large wood, fine particulate organic matter, gravel, etc.) from riparian zones to streams, as there is about how to keep undesired materials and energy out of streams. If forestry is not classified as a nonpoint source, then no other land use activity can legitimately be classified as a nonpoint source. As Senator Wyden stated at the March 1, 2000, hearings:
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Rainwater flowing through a forest or farmer's field can't be monitored and shouldn't be regulated the same way as point sources—pollution from factories. Calling forestry activities like harvesting a point source is like requiring every cow on a ranch to get a pollution permit—it simply won't work.
Has the forestry community been so slow in responding to water quality needs that it deserves additional Federal intervention?
In its report, Achieving Clearer Waters across America, EPA states that forests cover about one-third of the Nation's land area and are the starting point for 80 percent of our Nation's freshwater resources (USEPA 2000). If we use these figures, can we then expect that on average about 80 percent or at least one-third of the impaired waterbodies are associated with forestry? Achieving Clearer Waters Across America states that ''more than 20,000 miles of rivers and streams; more than 220,000 acres of lakes; and 15 square miles of coastal waters'' are affected by forestry. While the impact on 20,000 miles or rivers and streams is a concern, it needs to be put in perspective. Nationwide, a land use that represents one-third of the land area and 80 percent of the freshwater source is contributing only about 7 percent to the miles of impaired rivers and streams. Based on our review of impaired waterbodies, even this may be an overestimate. Forestry is classified as contributing to a much smaller fraction of impaired lakes and coastal waters and highly impacted rivers and streams.
From personal experience, I estimate that these totals may be inflated by our lack of understanding of water quality criteria and the needs of wildland stream systems. Clearly there are cases where past forest operations, such as harvesting near the stream and salvaging wood out of the stream, negatively impacted water and stream quality. Yet we also have examples where assessments have not recognized the variability of water quality across the landscape (Ice, Meghan, and Whittemore 2000). Perhaps the most dramatic examples are for stream temperature. The EPA Total Maximum Daily Load (TMDL) Tracking System database for State Clean Water Act (CLA) section 303(d) lists shows that 74 percent of stream reaches listed for temperature occur in Oregon and Washington. Forest management is expected to meet shade standards to lower temperatures to acceptable levels. Yet in some cases, riparian forests have been restored and tributary temperatures have been lowered, but the mainstem reach remains above water quality standards (Holaday 1992). The wide mainstem is naturally unshaded and at equilibrium with its environment. At some point no additional lowering of tributary temperatures is physically possible, and mainstem reach temperatures are a product of their own environment. A similar case can be made for streams in southern and lake States where downcutting in sediments deposited in streams from past land uses, rather than current management, contributes to high sediment loads (Trimble 1969).
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While 32 States are reported by EPA as having identified forestry as a source of water quality problems, surveys have found that most States rate forestry as a minor concern (Ice et al. 1997). Every State with significant commercial forestry operations has a forest nonpoint source control program (Ice et al. 1997). These programs have been designed to meet each state's specific needs. In States with very difficult terrain and resource risks, regulatory programs based on forest practices acts are in place. In other States dominated by numerous small private non-industrial holdings, non-regulatory programs based on information and education are in place. Both program types have tested and continue to test the effectiveness of State BMPs and the rate of implementation. Examples of high compliance can be found for both regulatory and nonregulatory programs.
Are the proposed actions cost-effective?
In 1986 the Northwest Environmental Defense Center filed a complaint alleging that EPA had violated section 303(d) of the Clean Water Act by failing to develop TMDL limits for water quality limited streams in Oregon. This resulted in a 1987 consent decree in which the Oregon Department of Environmental Quality (ODEQ) agreed to develop TMDL limits for 11—waterbodies and further review 17 others. The first stream to be assessed, one of the first in the Nation, was the Tualatin River, just south of Portland, Oregon. I was selected as a member of the technical advisory committee for that assessment.
While there were numerous water quality concerns within the Tualatin Basin, a major debate involved how to control excess phosphorus. Phosphorus is a primary nutrient and contributes to nuisance algae blooms that cause problems with dissolved oxygen, pH, odor, and taste. Forest management occurs in the headwaters of the Tualatin, with various agricultural, dairy, nursery, and urban activities concentrated in the lower reaches. Other forestry participants on the technical advisory committee included staff from the Oregon Department of Forestry, USDA Forest Service, and College of Forestry at Oregon State University. A review of phosphorus monitoring in Oregon and elsewhere showed that phosphorus is one of the least responsive water quality constituents to forest management (Degenhardt and Ice 1996; Salminenen and Beschta 1991). Phosphorus has a low solubility in most forest streams and is transported most efficiently when attached to solids. The State forest practice rules, with riparian management zones, make it unlikely to see any change in phosphorus concentrations, especially during the critical summer months.
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Despite the overwhelming evidence that forest management could not be contributing to excess phosphorus concentrations, the Oregon Department of Forestry was embroiled in a lengthy water quality criteria listing process and extensive monitoring. The monitoring found no relationship between the percent of watershed recently harvested and phosphorus concentrations. It did find a relationship to geology. Monitoring by the Oregon Graduate Institute and US Geological Survey (USGS) found that groundwater sources, resulting from ancient phosphorus-rich flood deposits, were the cause of the high summer phosphorus concentrations. The most recent USGS report, Water Supply Paper 2465-C, Sources and Transport of Phosphorus and Nitrogen during Low-Flow Conditions in the Tualatin River, Oregon, 1991–93 (Kelly, Lynch, and Round 1999) concludes that:
Because large natural supplies of highly mobile phosphorus exist in the upper 500 feet of valley-fill sediments throughout the Tualatin Basin, groundwater in the basin is naturally enriched with phosphorus. While improvement in wastewater treatment efficiencies and land management have resulted in significant reductions in nutrient concentrations in the Tualatin River, phosphorus concentrations continue to exceed TMDL criterion concentrations. The presence of significant geological sources of phosphorus in the basin will confound the achievement of current TMDL criteria for phosphorus in the Tualatin River and its tributaries.
Phosphorus limits were set to avoid algae blooms without consideration of what was achievable. Because these limits are being exceeded, environmental groups have threatened to file additional lawsuits. How much did this one TMDL, which set water quality criteria that could not be achieved, cost? $1,470,000 for the initial TMDL, $2,340,000 for the TMDL review, and an ongoing cost of about $200,000 annually. I estimate that about $5 million has been spent on this TMDL assessment since 1987 (Ice 1999a). Much of this cost has been useful in defining the problem and identifying management measures to lower phosphorus concentrations, resulting in some water quality improvement. However, the Oregon Department of Forestry had to spend more than $300,000 to prove what we indicated at the very first technical advisory committee meetings: forest management is unlikely to contribute to the high phosphorus concentrations observed in the Tualatin. This was time and money diverted from critical resources questions about landslides, riparian management, and forest roads.
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A 1998 Washington Department of Ecology (DOE) report (DOE 1998) estimated that it would cost $6.7 million annually for 15 years to conduct the 666 TMDLs for waterbodies listed as water quality limited in 1996. DOE concluded that even with major reassignments of staff, it does not have adequate human resources to address this task. In order to comply with the consent decree DOE will reduce efforts in other environmental programs including:
reduced nonpoint source technical assistance to landowners and policy development
reduced statewide and regional watershed reports and coordination
reduced timber practice watershed analyses and policy development
reduced water quality assessments and coordination with tribes
reduced technical assistance on lake protection and restoration
reduced technical assistance on groundwater protection
reduced aquatic pesticide management
Our concern is that, like the cases in Oregon and Washington, support for critical forestry environmental issues will be inappropriately diverted to the TMDL juggernaut and NPDES permitting. In most cases, it is the State forestry agencies that understand the priority issues and can focus limited resources to achieve the most.
Would the right agencies be involved?
A recent experience in Massachusetts provides a clue to the forestry communities' concerns about any diversion away from State forestry agencies having responsibility for silvicultural nonpoint source control programs (Thomas Kyker-Snowman, personal communication). The 1998 draft Source Water Assessment Program (SWAP) report under the Federal Safe Drinking Water Act (SDWA) ranked about 100 land uses as low, medium, or high potential threats to groundwater and surface water. Forestry was ranked under two categories, silviculture and logging. Both were ranked as a low threat to groundwater but logging was ranked as a medium threat to surface water and silviculture was ranked as a high threat. The high ranking is reserved for such land uses as slaughterhouses, junkyards, rustproofers, chemical manufacture or storage, and industrial waste lagoons and pits. Silviculture was consider a worse threat than nuclear power stations, animal feed lots, and asphalt plants.
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A group of foresters met with the Massachusetts Department of Environmental Protection (DEP) and discovered that these rankings were due to concerns about erosion and sedimentation from logging and the perception that foresters routinely apply insecticides, herbicides, and fertilizers. The forestry group explained that Massachusetts has a cutting practices act that requires implementation of BMPs. Also, the perception about routine applications of chemicals is misguided. Herbicides are usually applied once or twice over a rotation that can be anywhere from 25 to 100 years. Insecticides are rarely used and only for eradication of introduced pests, or to control catastrophic outbreaks. In Massachusetts 20 people are certified to use restricted pesticides in forestry settings, and chemical applications are generally limited to Christmas tree growers; 562 people are certified to apply restricted chemicals to shade trees and ornamental settings. In Oregon, the State with the highest timber production in the Nation, only about 1 percent of the chemicals applied statewide is on forestland. While the foresters in Massachusetts were successful in getting DEP to revise its draft assessment, it is clear that perceptions are dramatically skewed about the threat of forestry to water quality.
The addition of NPDES responsibilities for forest activities could further overload an already stressed system. A recent Friends of the Earth and Environmental Working Group review found that nationwide, 10 percent of NPDES permits had expired (www.foe.org/cleanwater/grades). In Oregon there are approximately 1,300 NPDES permits. Of these, 76 are considered major permits and two-thirds of these have expired. Annually the Oregon Department of Forestry (ODF) receives 20,000 notifications of forest operations (ODF 1999). Under forest practice rules, when sensitive areas and resources may be impacted, such as operations within 100 feet of a fish-bearing stream, a written plan must be approved by ODF before activities can begin. ODF reviews 3,000 written plans and conducts 17,000 on-site inspections each year. In Alabama, it is conservatively estimated that 25,000 timber harvests occur annually (Bill Jones, Alabama Forestry Association, personal communication). For these two States alone, State agencies or EPA could potentially need to review, prioritize, and provide meaningful NPDES permit requirements for nearly half a million forest operations each decade.
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State forestry agencies and State silvicultural nonpoint source control programs continue to be the most effective and efficient means of protecting water quality.
What are the potential consequences of adopting the EPA proposal for forestry?
EPA clearly states in its proposed revision to the NPDES permit program that those forest practices currently classified as nonpoint source activities (nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance) would be selected on a case-by-case basis for regulation based on (1) the location of the discharge with respect to waters of the United States; (2) the size of the discharge; (3) the quantity and nature of the pollutants discharged to waters of the United States; and (4) other relevant factors. Given the number of nonpoint silvicultural activities nationwide it is difficult to envision how these factors could be assessed. Tools developed by EPA based on geographic information systems (GIS), such as BASINS (Better Assessment Science Integrating Point and Nonpoint Sources) (Lahlou et al. 1996), provide for rapid watershed-scale assessments but don't address critical elements for forests. The current BASIN database provides very limited land use cover classifications (Anderson Level II) and the assessments are made at a scale that doesn't even recognize forest roads. Roads are clearly a major component of any meaningful assessment of the potential ''quantity and nature of the pollutants discharged to waters of the United States.'' Attempts to use simple relationships like road density (miles of road per square mile of watershed) have also proven unreliable because they don't address road practices and routing of materials to the stream.
EPA goes on to state that ''silvicultural sources would only be required to obtain NPDES permit authorization (1) upon a case-by-case designation by EPA or the authorized State and (2) for the purposes of EPA designation, only for sources that discharge to waters for which EPA has established a TMDL to ensure that the wasteload allocations and load allocations under the TMDL are achieved.'' (USEPA 1999) It may seem reassuring that this authority will only be exercised for these limited cases, but there is a real potential for this authority to have widespread application. The number of reaches classified as water quality limited continues to increase. In Oregon this number rose from 28 in 1986 to 1,168 in 1998 (Ice 1999b). The 1996 Safe Drinking Water Act is also determining that a large portion of forestland is the source of municipal water supplies. Further overlaid are aquatic Endangered Species Act (ESA) listings. In Oregon this includes listings for cutthroat and bull trout, steelhead, and Chinook, chum, sockeye, and coho salmon. It will be the exception, rather than the rule, for a forest operation to occur in a watershed not considered water quality limited, not serving as a municipal water supply source area, or without an endangered aquatic species.
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There are often unintended consequences when we dramatically shift programs to more bureaucratic procedures. An example is spelled out in a November 24, 1999, letter and memo from Governor Kitzhaber of Oregon to George Frampton, Deputy Assistant on Environmental Policy. In his letter Governor Kitzhaber provides several examples where Federal ESA policies are having an overall negative impact on the environment. Owners of private lands within national forests can secure access across the National Forest System for the ''reasonable use and enjoyment'' of private land under section 1323(a) of the Alaska National Interest Lands Conservation Act. ''Under a Federal grant of access, both effects from private use of the Federal roads and effects of the project on private land are subject to the ESA. Similar law applies to BLM access. Once a private landowner has decided to include a Federal right of way in managing land, the landowner has triggered the lower threshold of ESA consultation that characterizes Federal land management.'' Governor Kitzhaber reports that ''the State is finding that ESA-related access problems and other issues are causing private landowners to act in a way that is incongruous with State and Federal conservation strategies.'' In some cases, where access across Federal lands becomes cost-prohibitive or too time-consuming, private landowners are forced to construct new roads, even though existing roads on Federal lands would have met their needs. Some examples include:
Two industrial landowners were denied the opportunity to voluntarily replace old, inadequate culverts with new fish passage culverts without first going through the National Marine Fisheries Service (NMFS) consultation process. In both cases the access roads were Forest Service easements on non-Federal lands.
A project to vacate two miles of eroding creek bottom road on private land by accessing a Forest Service ridge top road has been put into jeopardy after the landowners learned that the Forest Service will be required to consult with the NMFS before issuing a permit, and the Forest Service may condition the permit based on the proposed activities on private land.
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A landowner requested permission to remove alder and to use 50 feet of BLM road to access his own existing rocked road to a harvest unit. BLM was agreeable but indicated that the permit process would take approximately 2 years. Instead, the landowner decided to construct approximately 600 feet of road at a 22 percent grade to access the unit.
There are numerous other examples provided by Governor Kitzhaber.
The most well intentioned of policies can lead to problems when they create bureaucratic barriers to legitimate interests. Good forest management is clearly the most desirable of all land uses to provide high quality waters and productive stream habitat (Brown and Binkley 1994). Actions that make forestry more difficult and costly can result in landowner decisions to change land use.
Forest nonpoint sources have consistently been identified as minor sources of pollution in all but a few states. Most States that have identified forest operations as a significant source of pollution have developed regulatory programs based on forest practice acts. Other States have sediment control or riparian laws that regulate forest activities. There are some States for which I coined the term ''quasi-regulatory'' because their basic nonpoint source control program is non-regulatory but large portions of the State or certain key practices are regulated. Even for States that have non-regulatory programs, surveys have found that almost all have back-up regulations to address bad-actors or significant pollution threats. All States with significant commercial forest operations have some type of silvicultural nonpoint control program.
I have been monitoring progress in these programs for more than 20 years (Ice et al. 1997) and have seen major improvements. State agencies that once resisted any type of silvicultural nonpoint source control program or BMPs now have comprehensive BMPs, educational outreach programs, and BMP effectiveness and implementation assessments. The Sustainable Forestry Initiative of the American Forest & Paper Association (AF&PA) includes a commitment by AF&PA members to implement EPA-approved State BMPs. BMPs, if applied, are consistently found to protect water quality. The most recent summary by the National Association of State Foresters estimated a national average between 85 and 95 percent compliance (Stuart 1996). Many States are finding BMP compliance rates to be greater than 90 percent, both for regulatory and non-regulatory programs. Florida has conducted BMP implementation surveys since 1981. Compliance has increased in Florida from a low of 84 percent in 1984 to 96 percent in the most recent surveys. Florida has also tested the effectiveness of silvicultural BMPs using macroinvertebrate sampling. Minnesota has just developed guidance BMPs for riparian protection. As part of the Oregon Salmon Plan, the forest industry has committed $130 million over 10 years to repairing roads at high risk of sliding into streams or blocking fish passage. In Washington, as part of the Forests and Fish Agreement, the industry has committed $200 million over the next 15 years for road repairs and $3 billion in wood forgone in riparian areas for future large woody debris recruitment.
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Past assessments have consistently shown that private non-industrial landowners, without assistance from professional foresters, are the most likely group to not implement State BMPs. Getting support to private non-industrial landowners is an important role for SAF. While EPA Assistant Administrator Chuck Fox has indicated that ''EPA will not include forestry provisions in the TMDL regulations to be finalized this summer,'' he does indicate that EPA could re-propose these provisions later this year. Any backsliding in silvicultural nonpoint source control programs is usually associated with inadequate funds to support the program because other priorities have been identified as higher. Water quality in forests would be best served by fully supporting existing forest nonpoint source control programs. The Society of American Foresters and its members continue to be committed to meeting the watershed and forest needs of our Nation.
The Society is opposed to the regulatory changes the EPA proposes for silvicultural operations. Forested lands and appropriate silvicultural activities on those lands regularly improve water quality. For example, silviculture is the preferred management activity in the Catskill watershed, the source of New York City's drinking water. Nowhere in the EPA's analysis is there any acknowledgement of the benefits received from managed forests. The health of our streams, lakes, and watersheds is clearly linked to the presence of trees. Scientists have shown that forests are the most beneficial land use for clean water. Forests, acting as a natural buffer, increase watersheds ability to deal with disturbances, leading to better water quality. Healthy watershed forests have numerous positive effects. They stabilize soil through a vast root system. Trees (and more importantly the forest floor and soil conditions they create) regulate streamflow and stormwater by absorbing runoff and trapping pollutants. Acting as a living filters, forests reduce the amount of nitrogen and phosphorous that flow into our waterbodies.
In addition to clean air and water, forests provide recreational opportunities; offer habitat and food for fish and wildlife; and supply fuel, lumber, and paper that we use everyday. Maintaining these benefits is best achieved through providing incentives to landowners to retain healthy forests covered by trees. The most effective means for controlling nonpoint source pollution from silvicultural activities is by designing and applying preventive and restorative watershed management practices. One of the strengths of the nonpoint source pollution control efforts under the CWA has been the utilization of existing State infrastructure to support silvicultural nonpoint source pollution reduction programs. According to national surveys (Stuart 1996), education and funding are considered to be critical components of efforts to improve nonpoint source pollution reduction programs and achieve higher water quality standards.
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Based on the results of our study and the success of existing State programs, the EPA has no defensible rationale for proposing this rule as it relates to silviculture. In fact, based on our findings regarding the EPA data related to silviculture, reports from the Government Accounting Office, and congressional oversight, EPA data supporting other portions of the proposed rule should also be considered suspect. We hope that this committee will work to convince the EPA that it should not consider re-proposing silviculture as a point source of pollution.
We want to re-emphasize that SAF shares the EPA's desire to reach the goals of the Clean Water Act and to control nonpoint source pollution from silvicultural activities. SAF and its members have 100 years of experience managing for water quality from forestlands. We will continue to offer our expertise and support to the EPA to protect the water emanating from our Nation's forests. However, we find the proposal to reclassify many silvicultural activities as point sources of pollution to be counterproductive to meeting the goals of the Clean Water Act.
Testimony of Steve Moyer
Thank you for the opportunity to testify before the committee today on behalf of Trout Unlimited (TU) concerning H.R. 4502, The Water Pollution Program Improvement Act of 2000. TU is a nonprofit organization whose mission is to conserve, protect, and restore North America's coldwater fisheries and their watersheds. TU has more than 125,000 members in the United States. TU is opposed to any delay in implementation of the proposed revisions to the regulations governing the Clean Water Act's Total Maximum Daily Load program, and therefore opposes H.R. 4502 as currently drafted because of the bill's 18-month delay provision . TU also opposes the TMDL rule delay rider now included in the House's VA/HUD/EPA appropriations bill for fiscal year 2001. Instead, we urge the committee to support funding increases through the appropriations process for implementation of the TMDL program and section 319 nonpoint pollution program.
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We believe that the committee members share with the vast majority of the American people a strong desire to see the promises of the Clean Water Act fulfilled; to achieve fishable, swimmable waters throughout the Nation; and to restore and maintain the integrity of the Nation's waters. Although we have come far toward these goals, we have a long way to go, and getting a grip on nonpoint source pollution is surely our greatest water quality challenge.
TU has put much effort into working with landowners and local, State and Federal agencies to prevent nonpoint source pollution to restore trout and salmon resources and the watersheds on which they depend. From the Blackfoot River in Montana, to the Kickapoo in Wisconsin, to the Beaverkill in New York, and to Kettle Creek in Pennsylvania, we and our chapters have raised hundreds of thousands of dollars and spent thousands of hours to protect and restore great trout and salmon rivers. We understand the water quality challenges that lie before us because we are out there on the ground right now trying to address them.
Therefore, we support full and effective implementation of the TMDL program. We also support the EPA proposal, because we think it will further implementation of the TMDL program and do what that program was supposed to do: clean up the Nation's polluted waters. The proposed regulations do not create a new program; rather, they represent an effort to provide a more manageable and effective framework for the implementation of a program that has been in the Clean Water Act since 1972. The proposed regulations do not impose any significant new burdens on the States or create any new regulatory mandates.
Rather, the new regulations:
create a locally driven process for the attainment of State water quality standards;
provide for lengthy and flexible time deadlines for the publication of lists of impaired waters, for the drafting of TMDL plans, and for the actual attainment of water quality standards; and
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create no new regulatory requirements, but instead provide an effective framework for marshalling existing programs under the Clean Water Act, the Farm Bill conservation programs, and Federal land watershed programs, in order to make progress towards attaining water quality standards.
H.R. 4502 provides two specific justifications for delaying implementation of the new regulations: the burden on States in complying with the regulations and the lack of adequate data for effectively implementing the TMDL program. Neither of these concerns justify delaying the new regulations.
I.The TMDL Regulations Place No New Burdens on States.
Section 2 of H.R. 4502 points to the claims made by numerous States that they do not have the resources to implement the proposed regulations, and section 4 would delay implementation of the new regulations until completion of a study that would, among other things, examine the cost of and alternatives to the TMDL program.
At the outset it is critical to note that there is nothing ''new'' about any burdens imposed by the TMDL program. The statutory requirements for TMDLs were included in the original Clean Water Act when it was passed in 1972. Congress included the TMDL provisions largely at the request of the States to serve as a backstop when the Act's technology-based programs might prove inadequate to achieve the Act's goals of fishable and swimmable waters. The new regulations in fact only build on existing regulations that implement a statutory requirement that is more than 25 years old.
The current impression of a ''rush'' to complete section 303(d) lists and TMDLs is in part a product of the fact that the States and EPA ignored the requirements of section 303(d) until quite recently. The fact that the TMDL program has not been adequately implemented in the past is no reason not to move ahead and implement it now. In fact, the unfortunate truth is that over 25 years of inaction has brought us to this point:
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20,000 water body segments are impaired and are in need of a TMDL pollution budget;
in large part because of habitat loss, 35 species of trout and salmon are on the Federal Endangered Species Act list and many aquatic species populations are in decline in all regions of the Nation; and
the Federal courts have essentially taken over the TMDL program, with EPA now facing legal action in 25 States to compel it and the States to move forward with the program.
Here are the words and findings of some of the Federal judges who have reviewed cases brought by conservation groups to compel EPA and the States to implement the program:
''In the 17 years since 1979, Idaho has completed only three TMDLS. Under the proposed schedule at least 25 more years would go by before the remaining TMDLs were developed. The net result would be to put off for another generation a step that Congress required be taken years ago.''
''And even the 25-year marker could well be missed. The schedule
sets only expected times and targets, not firm dates. Even recognizing that a TMDL may cover more than one WQLS, at Idaho's proposed submission rate the 25-years could easily turn into 50 or 75.''
Idaho Sportsmen's Coalition v. Browner, 951 F.Supp. 962, ——— (W.D.Wash 1996).
Note: This was based on a list that numbered in the 300–400 range which has since been expanded to over 1,000.
''In the nearly 20 years that have elapsed since the 1979 deadline, Virginia has never submitted a TMDL or TMDTL (thermal TMDL) for any of its waters, and EPA has never established any TMDL or TMDTL for any of Virginia's waters.''
American Canoe Association v. U.S. EPA, ——— F. Supp. ——— (E.D.VA, Dec 18, 1998).
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''Notwithstanding the fact that EPA was not pushing the States to develop TMDLs during the 1980's, New York was beginning to satisfy its obligation under sec. 303(d), unlike many States that turned a blind eye to the provision. Nonetheless, it is conceded by defendants (EPA) that actual efforts to develop, submit, and approve TMDLs that comply with statutory requirements did not begin in earnest until this lawsuit was commenced.''
NRDC v. Fox, ——— F. Supp. 2d ——— (S.D.N.Y., May 2, 2000).
''Defendants (EPA) state that Georgia has promised to develop approximately 25 complex TMDLs for its major river basins within the next 8 years. At this pace, Georgia will take over 100 years to complete TMDLs for the approximately 340 WQLSs (water quality limited segments) identified on the 1994 WQLS (303(d)) list.''
Sierra Club v. Hankinson, 939 F.Supp. 865, ——— (N.D.GA 1996)
Note: GA's list of impaired waters has since grown to over 800.
In proposing the rule, EPA correctly determined that a single, implementable TMDL program was preferable to 50 State court-ordered TMDL programs, the inevitable outcome the Agency faced unless it took action. Surely this committee would agree with EPA that a single set of TMDL rules, implemented fairly by each state, is better that a hodgepodge of court-ordered programs.
EPA's proposed changes do add some specificity to the TMDL program, including the requirement that each TMDL have an implementation plan. This plan must include a description of how existing State and Federal programs will be used to reduce pollution for the affected water body, and a timetable for achieving water quality standards. Although the drafting of an implementation plan for each TMDL may impose some additional burden, most TMDLs will be useless in achieving water quality standards without some meaningful effort to describe how the TMDL will be implemented. The implementation plan is a critical step that will move the TMDL from being a paperwork requirement to being a program that actually improves water quality. Indeed, TU fails to see how one can be opposed to effective plans for cleaning up dirty waters unless one is, in fact, opposed to cleaning up those waters at all.
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I should add that when the TMDL rule was first proposed, EPA also proposed a separate rule designed to address the impacts of forestry practices on impaired waters in a very narrow class of circumstances. This rule generated considerable fire, and some of its opponents implied that it was an integral part of the new TMDL regulations. The forestry proposal was in fact distinct from the TMDL proposal, and EPA has now withdrawn the forestry rule.
The preparation of meaningful implementation plans will place to some additional costs on states. EPA has proposed increasing the annual appropriations available to States to administer and implement the TMDL and other Clean Water Act programs to $410 million in the administration's 2001 budget. It has also proposed increasing funding to the States for nonpoint source programs from $200 to $250 million in fiscal year 2001. Some states, such as Oregon, have already stepped forward and committed additional resources to the restoration of water quality through the TMDL program. We urge you to help States get the additional funds they need by supporting the administration's proposals in the appropriations process.
In sum, with or without the EPA TMDL proposal, with or without passage of this bill, the mandate remains in the Clean Water Act for EPA and the States to draft TMDLs to help clean up the Nation's impaired waters. The EPA proposed rule is a sound approach to addressing the mandate.
II. MORE AND BETTER DATA IS NOT NEEDED TO START ON TMDLS.
In principle, TU supports improving the amount and quality of water quality data collected by the State and by Federal agencies. Indeed, we believe that more and better data would uncover additional water quality problems that current programs are missing. A recent GAO report, for example, found that, while data gaps are a problem, existing data do serve to identify the country's biggest problems, and that additional monitoring would likely turn up more problems, not less. Specifically, the report found that ''[e]ven though the State officials we interviewed are confident that they have identified their most serious pollution problems, they nonetheless acknowledge that more thorough monitoring would likely reveal additional waters that do not meet standards.'' (GAO, March 2000).
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More importantly, disputes about data to not justify further delay. The TMDL process is intrinsically adaptive to new data. Section 303(d) lists are not written in stone; every 4 years each State will have the opportunity to add and remove water bodies from its list as some waters achieve water quality standards, as others violate them, and as new data demonstrates that certain waters should be added or removed.
Improvements in data collection and analysis will allow lists to improve in accuracy, and will also inform the drafting of TMDLs as that process unfolds in the coming years. For example, many States are already investing in improved data and monitoring methodologies that include biological and physical criteria in addition to the chemical criteria that are currently used. The scientific basis of biological and physical criteria is well supported by peer-reviewed research. Any additional study of these methodologies would be merely duplicative effort. There is absolutely no reason to further delay these new regulations for more than 18 months to study improved data collection and analysis.
EPA'S TMDL PROGRAM HAS ALREADY BEEN SUBJECT TO EXHAUSTIVE STUDY.
Section 3 of H.R. 4502 directs EPA to contract with the National Academy of Sciences to study the scientific and regulatory underpinnings of the Clean Water Act's TMDL provisions. H.R. 4502 would authorize $5 million for this study. The irony of this directive is that the TMDL portion of the Clean Water Act has been one of the most studied, written about, talked about, and litigated provisions of any environmental law—and it has not yet even been implemented on anything more than a trial basis in any state.
The TMDL provisions of the Clean Water Act have already been the subject of an exhaustive 2-year study. In November of 1996, EPA established a Federal Advisory Committee Act Committee (FACA Committee) to provide recommendations on improving the EPA's TMDL regulations. The FACA Committee was charged with examining new policy and regulatory directives for TMDLs, including an examination of the science and tools needed to support establishment of TMDLs. In other words, the FACA Committee was given a directive nearly identical to the one that H.R. 4502 would give to a National Academy of Sciences study. In July, 1998, the blue-ribbon, 20-member FACA Committee completed its deliberations and issued a final report that contains over 160 specific recommendations for improving government efforts to identify impaired waters and establish TMDLs. Although not all of the FACA Committee recommendations were adopted, their final report informed the EPA's promulgation of its proposed TMDL rule.
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The TMDL program, including the EPA's proposed regulations, provides a large degree of flexibility and a considerable time cushion to the states. In addition, it sets up a process that is fundamentally locally driven, and imposes no new substantive regulations on pollution. Taking the position that these regulations are too burdensome is, in TU's views, equivalent to saying that cleaning up our waters is too burdensome, too expensive, or not worth the effort. Of course, we believe that cleaning up impaired waters is not only worth the effort, it is imperative. Instead of delaying the new TMDL program, TU urges you to help the States get the resources they need to restore their impaired waters.
Thank you for the opportunity to testify year today.
Statement of Jim Lyons
Mr. Chairman and members of the committee, thank you for inviting the U.S Department of Agriculture to present testimony and respond to your questions regarding proposed rules of the Environmental Protection Agency regarding Total Maximum Daily Loads of pollutants. I am Jim Lyons, Under Secretary for Natural Resources and Environment. I am accompanied by Thomas Christensen, Acting Director of the Animal Husbandry and Clean Water Programs Division of the Natural Resources Conservation Service
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 that focused on point sources 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.
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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.
For example, the Conservation Reserve Program (CRP) 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 (EQIP) have benefitted 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 (CREP) 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 fiscal year 2001 budget request includes $1.3 billion above currently authorized levels to bolster our agriculture conservation programs funded by the Commodity Credit Corporation. 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 time frames for planning and implementation.
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As you know, in January of this year Assistant Administrator Charles Fox and I 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 was reflected in our joint statement of May 1. While EPA has determined not to include forestry provisions in the TMDL regulation to be finalized this summer, I will briefly highlight some of the aspects of the agreement that are expected to go forward.
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 up to 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. 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.
As these rules go forward I want to encourage foresters and farmers to accept responsibility for nonpoint source impairment of our rivers and lakes. It seems that rather than work with State and Federal officials that are charged with implementing the Clean Water Act, much time has been spent on rhetoric that seeks to undermine the TMDL rule rather than improve it. For example we have often heard that the proposed rules would require private woodlot owners to secure a Federal permit before they cut a single tree or that farmers unable to reduce their nonpoint source pollution would be forced out of business. This is simply not true.
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A misunderstanding of the proposed rule and misleading sound bites have inflamed the passions of producers, and in my view, have done a great disservice to the farmers and foresters who are most in need of straight advice. We don't need further polarization of these difficult environmental quality issues; we need commitments to work together towards the common goal of clean water in a rational, science-based and balanced way.
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 the authorized level of $200 million to $325 million. The Conservation Reserve Program 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, 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.
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.
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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."