Segment 3 Of 3 Previous Hearing Segment(2)
SPEAKERS CONTENTS INSERTS
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THE ENVIRONMENTAL PROTECTION AGENCY'S PROPOSED REGULATION REGARDING TOTAL MAXIMUM DAILY LOADS, THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM, AND THE FEDERAL ANTI-DEGRADATION POLICY
Tuesday, February 15, 2000
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to call, at 10:33 a.m. in room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert [chairman of the subcommittee] presiding.
Mr. BOEHLERT. Today is the second in series of two hearings on EPA's proposed regulations on total maximum daily loads. Last Thursday, the subcommittee heard testimony from EPA Assistant Administrator Charles Fox, representatives of State and local officials, and the General Accounting Office. All the witnesses supported efforts to improve water quality. But we learned that there is a great deal of interest and concern in EPA proposed TMDL regulations. That did not surprise anyone.
State officials seriously doubt whether States will have sufficient resources to develop 40,000 TMDLs over the next 15 years. Local officials are concerned that the proposed regulations will adversely impact efforts to combat sprawl and revitalize our cities. The General Accounting Office reported to the committee that only six States have the data they need to identify nonpoint sources of pollution and develop TMDLs that would allocate pollution reductions to those sources. Assistant Administrator Fox made a forceful case for the need to strengthen current efforts. He also listened to the many concerns expressed and sought to clarify the intent of the proposed regulation, with mixed success.
I believe this discussion that took place in this room last week was very useful and will need to continue.
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Today we will hear from Under Secretary Jim Lyons of the U.S. Department of Agriculture as well as representatives of the regulated community and environmental groups. Our distinguished witnesses today include members of the Federal Advisory Committee on TMDLs that worked so hard to provide EPA with recommendations on how to improve the TMDL program, as well as participants in TMDL litigation that has provided some of the impetus for change.
I know we will hear more criticism of EPA's proposed rule from today's witnesses, including representatives of the environmental community. But I also hope that we will once more hear a shared goal of improved water quality. Solving our Nation's remaining water quality problems will not be easy. I urge EPA to carefully consider all the concerns that have been raised about this proposed regulation and issue a final rule that will not only establish a framework for greater cooperation, but will also conform to the Federal Advisory Committee's number one recommendation: restoring impaired waters must be a high priority for all responsible agencies and sources.
Let me now turn to the Ranking Democrat of the subcommittee, the gentleman from Pennsylvania, Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman, for holding this second hearing on EPA's proposed rules implementing the Clean Water Act.
For close to 30 years, the Clean Water Act has been instrumental in cleaning up our Nation's streams, lakes, and coastal waters. Through strict technology controls and limitations, we have taken the difficult steps necessary to deal with point sources of pollution. However, as we all know, point source controls have only gotten us halfway in achieving our goals of fishable, swimmable waters.
For years, I have been saying that the next step in achieving water quality is to expand the Clean Water Act's successes to address nonpoint sources of pollution. That is why I am encouraged by EPA's proposals that are the subject of today's hearing.
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In these rules, the Environmental Protection Agency is proposing to establish a new framework for identifying and cleaning up our Nation's rivers, lakes, and coastal waterways. By modifying the existing requirements for total maximum daily loads, the proposed rules outline a program for States, territories, and tribes to identify all impaired waters, regardless of the source, and to develop local plans to restore water quality. By looking for equitable reductions from all sources of pollution, we can assure that thousands of additional river and shore miles have healthy aquatic ecosystems and millions of more lake acres are safer for swimming and fishing.
As with any effort to further strengthen environmental protection, these proposed rules have generated a great deal of controversy. That is why, Mr. Chairman, I am glad that we have been able to bring together many of the interested and affected groups so we can develop a better understanding of the issues presented in this proposal.
I welcome the witnesses today and look forward to hearing their testimony.
Mr. BOEHLERT. Thank you very much.
Mr. Boswell, do you have anything?
Mr. BOSWELL. No, Mr. Chairman.
Mr. BOEHLERT. Thank you.
Mr. BOEHLERT. Let's go to panel number one consisting of Jim Lyons, Under Secretary for Natural Resources and Environment, Department of Agriculture; Mitchell M. Dubensky, Director, Forest Resources Environment, from Washington, D.C.; Douglas P. Haines, Executive Director of Georgia Legal Watch; and from the American Farm Bureau Federation, Mr. John Barrett, member from Texas.
Gentlemen, your entire statements will appear in the record at this juncture. We would ask that you try to summarize in approximately 5 minutes or so. We will not be arbitrary because the subject matter is very important, but be mindful of the time.
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Mr. Lyons, you are up first.
TESTIMONY OF JIM LYONS, UNDER SECRETARY, NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE; MITCHELL M. DUBENSKY, DIRECTOR, FOREST RESOURCES ENVIRONMENT, WASHINGTON, D.C.; DOUGLAS P. HAINES, EXECUTIVE DIRECTOR, GEORGIA LEGAL WATCH; AND JOHN BARRETT, FARMER, EDROY, TX, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION
Mr. LYONS. Thank you very much, Mr. Chairman.
I want to thank you and the other members of the committee for affording the Department of Agriculture the opportunity to present testimony on this important issue and EPA's proposed rules for implementing the TMDL approach to dealing with nonpoint source pollution.
I am accompanied by Tom Christensen, the acting director of the Animal Husbandry and Clean Water Programs Division of the Natural Resources Conservation Service, and Warren Harper, the deputy director for Watershed and Air Management of the Forest Service, as well as Linda Delgato, Executive Assistant to Deputy Secretary Rich Rominger.
As you said at the outset, Mr. Chairman, we all share a commitment to cleaning up the waters of the United States. We have had a lot of success in reducing water pollution under the guidance of the Clean Water Act over the last several decades. We have been extremely effective in dealing with issues associated with point sources of pollution. The greatest challenge remains, which is to continue to make progress in dealing with those issues of nonpoint sources of pollution.
We are here today to discuss EPA's proposed revisions to the TMDL program, particularly as they affect nonpoint source pollution. The Department recognizes that runoff from rural and forested communities continues to be a leading source of water pollution, and water quality controls will only succeed if nonpoint sources are addressed more meaningfully in a collaborative manner with the States.
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The President's Clean Water Action Plan, announced in February 1998, provides a blueprint for tackling our remaining water quality challenges through research, education, technical assistance, and financial assistance. That plan was developed through a co-lead between the Department of Agriculture and the Environmental Protection Agency with the full collaboration and partnership of other departments and agencies in the Administration.
One of the agencies that obviously plays a key role in addressing nonpoint source pollution is the Natural Resources Conservation Service. NRCS works directly with landowners providing technical assistance through the Small Watersheds Program, Environmental Quality Incentives Program, Wetlands Reserve Program, Conservation Reservation Program, and the efforts of the Resource Conservation and Development Program. All these programs play an important role in helping landowners maintain and improve water quality.
For instance, USDA has enrolled over 30 million acres in CRP, a program that removes from production environmentally sensitive agricultural lands allowing the ground cover to filter runoff. Similarly, recent initiatives under the Conservation Reserve Enhancement Program targeted land next to waterways and creates stream side buffers that improve water quality. We hope the members of this committee will look favorably upon the President's proposed fiscal year 2001 budget in conservation, which includes a $1.3 billion initiative to deal with private land conservation and provide the desperately needed funding for these very important programs.
The role NRCS plays in water quality efforts really has two components. Our programs apply to private lands through voluntary efforts. And our water protection activities involve the public through locally led conservation initiatives. It is the Department's strong recommendation that emphasis be given to fully supporting these efforts and most importantly the technical assistance that is a unique aspect of the delivery system and the working relationship we have with private farmers and ranchers across the Nation.
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The Department also wants to enhance communication between our agency and EPA in working on this new policy and rules. We are committed to serving America's agricultural and forest communities.
For this reason, I have contacted Chuck Fox and we have jointly established an interagency policy coordinating team. The group has met several times over the past few weeks, and I am glad to say that on the substantive issues of concern that we have raised with EPA I think we are making significant progress. The technical team has helped USDA better understand the proposed TMDL rule and I think we have helped EPA understand some of the implications and ramifications of some of what they have proposed.
The EPA acknowledges that due credit will be given to the voluntary water quality programs I have mentioned, programs that we administer through USDA both through NRCS and the Forest Service, and that they will play an appropriate role in addressing the TMDL issue in the future.
We are asking EPA to clarify its position as to when discharges from silvicultural activities will be required to have a Clean Water Act permit and how such permits should be structured. To the extent NPDES regulations are expanded with respect to silviculture, USDA recommends that EPA draft clear standards that limit point source designation to discharges of stormwater in situations where ineffective or absent management programs have allowed pollution to degrade our waters.
Finally, USDA encourages EPA to provide comprehensive cost projections and seek necessary funding of the TMDL initiative. We understand EPA is now working to assess more fully the overall costs of the TMDL program and that these estimates will be available in the spring of this year. Whatever cost projections are ultimately derived, funding for BMPs under Section 319 should be given a priority as well.
Again, USDA has undertaken an interagency effort at strengthening our communication and cooperation. We need that partnership as we jointly tackle the daunting challenge we face in dealing with nonpoint source pollution.
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Mr. Chairman, I know you are strongly committed to addressing these issues, as are the rest of us, and we look forward to working with you and the Environmental Protection Agency and our other colleagues and partners in making further efforts to refine these rules and make sure, most importantly, that we finally get on with the business of dealing with those nonpoint source pollution concerns.
Mr. BOEHLERT. Thank you very much, Mr. Lyons.
Mr. Dubensky?
Mr. DUBENSKY. Thank you, Mr. Chairman.
I apologize. The original witness fell ill this morning, so I am substituting for him, and I do apologize for that.
Mr. Chairman and members of the committee, my name is Mitch Dubensky. I am director of Forest Resources Environment with the American Forest and Paper Association here in Washington, D.C. I appreciate the opportunity to testify today on behalf of AF&PA and on the two rules that EPA issued in August 1999.
Mr. Chairman, as you will hear, these proposed rules are a radical departure from existing Federal statutory authority and case law and it has drawn a lot of significant concern from the forestry and ranging community around the country.
As you know, AF&PA is a national association of the forest and paper industry and that while we do represent significant manufacturing interests around the country, I am going to focus my remarks today exclusively on the forestry issue and will defer to the Clean Water Industry Coalition witness to talk about some of the manufacturing issues.
The two rules are incredibly complex, but what we are struck by is the heavy-handed Federal approach that is being dictated on the States and on the forestry community. As you are aware, there are a lot of associations and other folks who have considerable concerns, including the Society of American Foresters, the Forest Service, the National Association of State Foresters, Governors, and others.
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Focusing in on the rule itself, we believe that it eliminates 30 years of congressional intent on the designation of forestry as transferring it from a nonpoint source to a point source category. I will address for you today a couple of the other things regarding what we think are alternatives to focus on as well.
To give the committee a little bit of history, back in 1975, EPA chose to exclude certain activities, including silvicultural activities, from the NPDES program. The Federal courts ruled against EPA and asked the agency to identify those activities which are point sources. When they identified those activities as point sources, they identified them as rock crushing, gravel washing, log sorting, and concentration yards, significant industrial, transportation, and processing activities.
EPA justified the basis for labelling those as point sources because they said, by way of explanation, in the proposed rulemaking that ''the Clean Water Act and its legislative history make clear that it was the intent of Congress that most water pollution from silvicultural activities be considered nonpoint in nature'' and addressed under Section 208 of the statute.
EPA has proposed to eliminate practically all silvicultural activities from the categorization and instead has redefined them as point sources. This would be triggered when a State or EPA determines that the silvicultural activity contributes to the violation of a water quality standard or is a significant contributor of pollutants to the waters in the United States on a case-by-case basis.
They basically provide two rationales for this. First they say silvicultural is not specifically identified as a nonpoint source in the Clean Water Act and that the new stormwater provisions under Section 402(p)(5) allows them to designate that. We do not see that as a correct interpretation. The congressional history and writings on that make it very clear that the Congress had always intended to designate forestry as a nonpoint source category. In fact, the CRS in a recent report reaffirmed that opinion in a submission to the Congress.
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As we go through the stormwater issues, what we find even more complex is that after the 1987 amendments were adopted, EPA promulgated rules in November 1990. ''EPA agreed with the commentators that logging is a transitory operation that may occur on a site for only a few weeks in a 20-30 year period, that delays in obtaining permits could create problems in the harvest schedule and mill demand, and that runoff from such operations should be controlled by BMPs in effect for such industries and that such a permit would not be practical and would be cost-prohibitive.''
In fact, when EPA submitted a report requested by Congress on the stormwater program and submitted it, silviculture was not identified as one of the five leading categories of water quality impairment, and it was not identified among the 90 leading causes for potential consideration under the phase two stormwater program.
Mr. Chairman, I have a lot more to say, but my time is running out. So what I would like to do is just focus quickly on the incredible progress in achieving improvements in water quality from forestry operations. If you look at page 10 of the testimony, it talks a little bit about the facts of how we have improved water quality. We are not perfect—nobody says we are—but we have made tremendous strides and we think that through a few tweaks in the Section 319 program and better partnerships and relationships with the States and EPA we can resolve and make further progress toward achieving those goals.
Mr. BOEHLERT. Thank you very much, Mr. Dubensky.
Mr. Haines?
Mr. HAINES. Thank you for extending the invitation to testify here today. I appreciate that.
My name is Doug Haines and I am the director of Georgia Legal Watch. We are a nonprofit organization and have been involved in TMDL issues for about six and a half years. Most notably, we act as counsel in the Georgia TMDL case where we represent a coalition of State, local, and national environmental organizations. We continue to be involved in that litigation. In the next day or two, we expect to see another consent order in Georgia that has just been submitted to the court today.
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However, litigation is not the only thing that drives the TMDL process. I want to identify for this committee the fact that citizens in local governments play a key part. My organization is doing work to facilitate communities being involved in the TMDL process. To that end, I would like to submit along with my testimony some additional publications talking about the citizen role in the TMDL process.
We are providing legal and technical assistance to citizens, citizen groups, and local governments. We are also providing scientific and technical assistance on the actual development of TMDLs in Georgia. When I leave today, I will be hopping on a plane to go down to a very different Washington in the State of Georgia for the first hearing on a TMDL in Region IV.
I hope that by testifying today I can bring a different perspective from what you usually hear. And I would like to testify from the perspective of a citizen, from the perspective of what they care about concerning water, which is whether the water is clean. I want to make it perfectly clear that the reason I am here is because the water is not clean and it is really necessary that something be done about that. I am not here for special interests.
I am not here on behalf of a narrow industry group. I am here for citizens to try to express their concerns about clean water and to tell you that in Georgia, people really do look to the Clean Water Act for assurances that they are going to be able to have water that is clean enough to drink, clean enough to fish in, and clean enough to swim in.
I hope to talk about some real-world perspectives with a real program that is happening in Georgia. I would also like to tell you that I think the TMDL process offers real hope for progress in cleaning up water quality. Most importantly, I think you will find that the TMDL process is the kind of process that is supported by the average citizen, the people on the street. That is because the TMDL process identifies the totality of water quality programs and allows agencies and communities to rank those so that we can start addressing the real water quality problems in this country in a cost-effective manner by finding the most cost-effective means to deal with water.
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And that's where the rubber meets the road with citizens. They want to see the water get cleaned up where they live.
We are going to talk about an alphabet soup of regulations here with the CWA, TMDL, NPDES, WQLS, et cetera. People don't understand that. What they do understand is when someone tells them that they can't fish where they live. I will tell you that I have had that very unfortunate task in Augusta, Georgia a few years ago. I had to tell some people in one community that they could no longer eat the fish where they lived. When I say that I am talking about the fishermen, I am not talking about the sport fishermen types. I am talking about the feed-the-children-back-at-home fishermen types, real people with real water quality problems.
Are those problems solved? No. Are we on the way? Yes.
There are now TMDLs on that particular section of water bodies in the Savannah River and the adjoining waters dealing with all the contaminants that have prevented people from eating the fish there. Mercury, toxicity, fecal coliform, and one that I can't forget under the pressure of this testimony. Just a week ago today the first mercury TMDLs were put out and they will ratchet back the amount of mercury that is discharged by point sources on this heavily industrialized water.
TMDL leads us to cost-effective and efficient mechanisms and it needs and requires your support. The cost of these programs is ultimately borne by the people I speak on behalf of. While an industry group will contend that their industry group will pay the cost, I guarantee that if I have to go buy a two-by-four, that cost will be in there. If my sewage agency has to put some money into it, it is coming out of my taxpayer dollars and yours as well. The cost is spread to the people. I think that is a paper tiger.
I think these regulations need to follow the Hippocratic Oath's first line, ''First, do no harm.'' Let's make sure that we are protecting the waters where they are before we allow any more pollutants or pollution in. We also need to use regulations that provide clarity. I think they are very effective in terms of identifying some of the listing processes, the things that TMDLs are. And I support the implementation plans being involved in Section 303(e), but I like the delineation of the implementation plans for what they need to do for water.
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I look forward to your questions and thank you again.
Mr. BOEHLERT. Thank you very much.
Mr. Barrett?
Mr. BARRETT. Mr. Chairman, my name is John Barrett and I am a cotton farmer from San Patricio County, Texas. I belong to an industry that cannot pass along costs. We just take the price that the marketplace offers us. I am here today before the committee to share with you the viewpoint of the American Farm Bureau Federation, fifty State farm bureaus, and almost five million farm bureau families across the country. I am also representing the views of every national agricultural commodity organization in the country.
We in agriculture strongly believe that EPA's interpretation of the TMDL statute does not conform to the legislative intent expressed by Congress since the Clean Water Act was passed in 1972. My written testimony contains a detailed analysis of that position. It also includes USDA's comments to EPA on the regulations, which are quite parallel to our comments.
Beyond the issues relating to statutory history and legislative intent, the very term ''total maximum daily load'' is counter-intuitive to nonpoint source management. Total maximum daily load implies a constant and regular engineered and controllable environment, like you get with a valve on the end of a pipe. However, nonpoint source professionals are well aware that nonpoint source runoff is distinctly unpredictable and unamenable to control.
Farmers can't control the rain. If we could, I wouldn't have had a crop drought disaster in 1996 and 1998, followed by two successive floods from Hurricane Floyd and Hurricane Brett in 1999. This is why Congress in 1987, with great common sense, enacted Section 319 of the Clean Water Act as the Nation's first—as they said at the time—program to manage nonpoint source runoff.
In its zeal to redefine nonpoint source runoff as a discharge subject to the TMDL statute, EPA is attempting to drive a square peg into a round hole. The Federal Section 319 nonpoint source program grants States the flexibility to develop practicable, economically feasible, and incentive-driven approaches which are implemented as a suite of best management practices, of BMPs.
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Section 319 approaches are considered to be implemented when they are put in place. In other words, implementation of the BMP is equivalent to compliance.
The TMDL statute has a different bar. Its requirement is that compliance is not achieved until water quality standards are met. For nonpoint source runoff, this requirement raises the real possibility that a source will have to be eliminated from the watershed in the event that BMPs and modified BMPs ultimately prove ineffective in attaining water quality standards. This was not Congress' intent in 1972 when the act was passed.
Mr. Chairman, EPA has made a policy decision with which it cannot possibly comply. Under the approach EPA is approaching in the TMDL regulations, if an EPA regional administrator disapproves a State-submitted TMDL and/or implementation plan, then EPA must impose a Federal TMDL and implementation plan on the State and stakeholders in the watershed within 30 days.
Mr. Chairman, this must be a joke. EPA can't even answer their mail in 30 days, let alone develop a TMDL and an implementation plan. Even worse, the Federal implementation plan equals Federal zoning and Federal land use planning. Cities can do it, some counties can do it, States can do it within limits, but the last thing most of us heard is that the Federal Government needs unambiguous statutory authority to do so. By this, I mean Congress passing a law and not the Administrator of the EPA passing a regulation.
Finally, I recently heard a senior EPA official tell a group that this program will have a multibillion dollar impact, and I agree. However, EPA is officially claiming only $25 million on States and an unknown amount on the economy. I have even heard the AA for Water, Mr. Fox, tell another subcommittee of this body that EPA would never regulate nonpoint sources through a TMDL. However, EPA developed a single TMDL in California which imposed $12 million worth of costs on just three farmers.
Mr. Chairman, when the EPA figures out how to control the weather, those of us out in the real world of runoff will be apply to comply with a total maximum daily load.
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Mr. BOEHLERT. Thank you very much. I think it is safe to conclude that you are opposed to the proposed regulations.
[Laughter.]
Mr. BOEHLERT. Mr. Lyons, you can help clear up some confusion.
During his confirmation hearing before the Senate Environment and Public Works Committee, Acting EPA Deputy Administrator Mike McCabe told the committee that USDA intends to withdraw its comments on EPA's TMDL rule. USDA's comments have been endorsed by most agricultural and forestry groups. The National Association of State Departments of Agriculture wrote to Secretary Glickman endorsing USDA's comments and asking USDA to clarify its position.
Does the Department stand by the comments filed on this TMDL proposal on October 22nd?
Mr. LYONS. Thank you for the opportunity to clarify that, Mr. Chairman.
I should say at the outset for the record that the letter submitted by the Department does not represent the official position of USDA. Nevertheless, it was made and is still a part of the record related to TMDLs.
I should explain what that means.
This letter was prepared in order to ensure that we had comments in by the end of what we believed would be the comment period, October 22nd. The letter was prepared, and unfortunately, in the haste of trying to get it out the door and to EPA, it did not go through formal clearances. Frankly, it did not receive the attention I would have liked to have provided to the letter.
It was signed by my deputy, on my signature block, and went forward to EPA as comment.
Having said that, I want to emphasize, however, that many of the substantive issues that we raised in that letter are substantive issues that we continue to have with EPA. It is for that reason that we began our dialogue a few weeks back to try and tackle those substantive concerns and see if we could not reach resolution on them.
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So we continue to work on those substantive concerns, but I have to state for the record that that letter does not represent the official USDA position.
Mr. BOEHLERT. Thank you—I think.
[Laughter.]
Mr. BOEHLERT. EPA has received 30,000 comments. I hope they are not all as ''qualified'' as USDA's.
But under its TMDL proposal, EPA claims that it has the authority to designate some agriculture and silviculture operations as point sources and require those sources to get a Clean Water Act permit. Last week, the EPA and Assistant Administrator Chuck Fox testified that EPA was not proposing to regulate nonpoint sources. Instead, he claimed that EPA was proposing to bring unregulated point sources under regulation.
That is almost as confusing as the letter exchange.
Under the Clean Water Act, there is no such thing as an unregulated point source. It is illegal for a point source to discharge pollutants into navigable waters without a Clean Water Act permit. If EPA is right and agriculture and silviculture operations are really point sources, then tens of thousands of agriculture and forestry operations are violating the law right now and are vulnerable to $27,500-a-day penalties.
Does USDA support this new interpretation of the Clean Water Act that would make silviculture and agriculture operations vulnerable to citizen suits and enforcement actions?
Mr. LYONS. Mr. Chairman, I am not an attorney, so I am not in a position to give an authoritative answer on the legal authorities that affect EPA. Certainly EPA has the authority to promulgate the rules they are moving forward with on TMDLs.
However, I don't know that I can comment on the extent of their authorities, and that is certainly an issue that is much in focus. There has been a debate over that for about two decades, and I understand it is the subject of a court case in California right now.
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Certainly in some instances EPA is regulating certain silvicultural practices. Mr. Dubensky referenced some of those that were defined by regulation. And in this instance, EPA proposes on a very limited case-by-case basis to address certain other silvicultural provisions.
As to their overall authority and the legal framework under which they operate, I don't know that I can offer you more insight. This is why we are sitting down with them to work these issues through to see under what circumstances we can work together to make sure we address the larger issue of nonpoint source pollution.
Mr. BOEHLERT. The dialogue continues?
Mr. LYONS. It does.
Mr. BOEHLERT. I will give you a softball for my final question.
[Laughter.]
Mr. BOEHLERT. You mentioned CRP, which is something near and dear to my heart. You said there are 30 million acres enrolled.
Do you have a breakdown you can share with the committee on how many of those 30 million acres are in what is traditionally called ''the east''? CRP has traditionally been viewed as the purview of midwesterners, and I have tried my darndest to have it national in scope and one of the most valued uses of CRP is to protect our water supply, which I think is an enlightened approach to the whole thing.
How are we doing?
Mr. LYONS. We can give you that breakdown, Mr. Chairman. Also being from the east but slightly south of you, I share that concern.
I should point out that through authority in the 1996 Farm Bill, we were able to expand the impact of CRP through the creation of the Conservation Reserve Enhancement Program, or CREP. As you are well aware, in the New York City watershed, for example, just to the south of you—
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Mr. BOEHLERT. It is my amendment.
Mr. LYONS. Well, we appreciate that. We have been able to use that tool to put in buffer strips to begin to address specific water quality concerns through this basic filtration.
Mr. BOEHLERT. That's where you get the Farm Bureau agreeing with you. I just want to make sure we are going national in scope.
Can you give me the breakdown?
Mr. LYONS. We can provide you that. I just want to point out that in the fiscal year 2001 budget we proposed $125 million in additional funds for bonus payments for buffer strip enrollment to address another problem—for example, the higher land values in the east, which tend to serve as a disincentive for producers to enroll. So we are trying to address that issue as well.
Mr. BOEHLERT. That is an enlightened approach. Thank you.
Mr. Borski?
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. Haines, let me start with you, if I may.
Do you believe that it is possible to attain water quality standards without effectively addressing nonpoint source pollution?
Mr. HAINES. No, it is absolutely impossible. And I think it is really clear that the Clean Water Act, in Section 303(d), clearly referenced nonpoint sources. Under the existing regulations, we are looking at a very understandable algebraic equation that talks about adding point sources and nonpoint sources along with a margin of safety and seasonal variation. I think it is clear that if you are part of the problem under Section 303(d) you have to be part of the solution.
Mr. BORSKI. Mr. Barrett, would you care to respond to that?
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Mr. BARRETT. Part of the problem and part of the solution is really my line, Congressman. The question is, How do you get there?
Section 319, when it was passed by Congress in 1987 was roundly stated to be the Nation's—to quote Senator Simpson, ''For the first time we have included a provision in the Clean Water Act relating to nonpoint source pollution that comes from farmlands and timber operations and other sources of runoff which are not considered point sources.''
Throughout that debate, there was ample discussion that this was the Nation's first attempt to control nonpoint sources. Again, taking place 15 years after the TMDL statute was passed, which EPA is now trying to say is a nonpoint source statute.
We believe that Section 319 offers remarkable opportunities to achieve attainable water quality standards for nonpoint sources. It focuses on practicable and incentive-based, bottom-up approaches, sir, rather than EPA command-and-control. That is what we think needs to be done. We think that program needs to be improved to achieve water quality standards. We don't believe that a command-and-control program like Section 303 that allows the removal of sources from the watershed is an acceptable way to manage rainfall.
Mr. BORSKI. Mr. Haines, do you think the EPA rule turns nonpoint sources into point sources? Or does it make currently exempt point sources possibly subject to regulation?
Mr. HAINES. I think the eradication of silvicultural exemption is just that. I think that what it is is a reclassification. I think the silvicultural activities always could have been declared a point source legally and that there was legal authority for that because there are discreet conveyances of pollutants into the water. I think what we are really seeing is a recognition of a real world impact on water and we are getting our regulations up to date to reflect that.
Mr. BORSKI. Thank you.
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Mr. Lyons, the Department of Agriculture is doing some wonderful programs that you talked about in your testimony and the chairman has alluded to as well, such as the Conservation Reserve, Wetlands Reserve, and Environmental Quality Incentive Programs to address erosion, water pollution, degraded habitat, wetlands protection, and the like.
What is the length of the term of the commitment and what happens at the end of that term?
Mr. LYONS. Just for clarification, Congressman, are you talking about a specific program in terms of our commitment?
Mr. BORSKI. When you enter into agreements with landowners, how long is it for? Are those time specific?
Mr. LYONS. Specific programs might have specific requirements. For example, CRP provides for a 10-year enrollment. Other programs might be lengthier. We have 15-year, 30-year, and permanent easements for the Wetlands Reserve Program and the like.
Our goal—and I want to emphasize, because I think Mr. Barrett made this point very well—agriculture is a critical part of the solution to nonpoint source pollution. I think through these tools and the investments we have made, we are making substantial progress from a site-specific, bottom-up watershed-based approach.
But our goal is to try to make for permanent improvements in conservation practices to ensure that agricultural and forestry can continue to do what it can do through good land stewardship practices to reduce their impacts on water quality.
Mr. BORSKI. I know that when we helped the municipalities there was grant money and point source pollution was handled to a certain degree. We don't go back every 10 years and repay those municipalities. Is there a way to get some permanent results with these programs?
Mr. LYONS. I suppose there would be under current authorities. For example, CRP is a 10-year contract, and then producers have the opportunity to re-up. We have other tools we have introduced. As I said, WRP has the options of shorter-term or permanent easement. The other programs might have a longer contract period. The Wildlife Habitat Improvement Program, which also affords tremendous water quality benefits mainly on aquatic habitat, I believe is a 10-year term for contracts.
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We have sought to design these programs with Congress' clear direction to try to maintain flexibility for producers. The perception has always been that permanence would be a disincentive for participation. That is not necessarily played out and the Wetlands Reserve Program is an excellent example where we have more demand for permanent easements than we do for shorter term. But our goal ultimately—using these very tools—is for permanent change in behavior, enhancing our ability to address nonpoint source concerns while ensuring that producers can remain a profitable entity.
Mr. BORSKI. Let me just follow that, if I can.
At the end of the contract, do we lose any of the environmental benefits?
Mr. LYONS. If a producer were to elect to drop out of the program, yes, we could. I think our history has been—and we just rolled over contracts begun in the 1985 Farm Bill—is that a large number of producers do continue to operate in a conservation-minded way. The real question is going to be in 2002 when farm policy is to change tremendously. What then? What happens in terms of conservation programs? This is the reason for our $1.3 billion initiative in this budget, to try to build a different model for ensuring incentives for producers to continue to invest in conservation practices and help them do it.
Mr. BORSKI. Thank you.
Mr. BOEHLERT. Thank you very much.
Before turning to Mr. Gilchrest, I would note that Mrs. Kelly was here and she has a deep and abiding interest in this subject matter, but she had another commitment she just could not get out of. She will be submitting some questions in writing and because of her special interest would appreciate a timely response.
Let me also note that there may be other members who will follow up with written submissions and we would request a timely response.
Mr. Gilchrest?
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Mr. GILCHREST. Mr. Chairman, I think we need to throw another log on that wood stove. It's chilly in here.
[Laughter.]
Mr. GILCHREST. Just very quickly, Mr. Borski from Pennsylvania, the funds that were provided from municipalities to improve water quality to prevent point source pollution—or even nonpoint source pollution through stormwater controls—there is an engineering mechanism you put in place in municipalities which redirects water, which then solves the problem. But in agriculture, as long as you have that buffer strip there, you preserve some water quality by filtering out the nutrients. As soon as you take that buffer strip away, that protection ends. With that buffer strip there that takes up land that the farmer uses for his production—and that means money and so on.
So the funds are provided for him on a continuing basis to improve that water quality because he is taking dollars out of his pocket every time he puts up that buffer strip.
I would like to say very quickly that to me agriculture is on the same level as national defense. It is as important as national defense and it is really one of the most complicated issues that anybody can deal with because of the complexity of being dry one year, 14 inches of rain in 24 hours the next year, and it is just very difficult to keep us. So we have to pay attention to this particular issue.
But I have seen with my own two eyes where I live where there were buffer strips put in where there were none before. The water quality improvement is dramatic. It is fast. If you keep that buffer strip there, whether it is a forested buffer, or a grass buffer, or mixed, that water quality improves.
I would address this question to the panel. Ten years ago, it was assumed that phosphorous didn't move with surface water, it only moved with the sediment, so that if you could control the erosion, you controlled the phosphorous input into nearby streams. It is now, I understand, clearly a scientific fact that phosphorous moves with surface water. So unless you have some type of buffer or nutrient management especially—because buffers don't even work very well with phosphorous when it moves—unless you have some type of nutrient management program, you will continue to have an overload of phosphorous. You can control nitrogen with the buffer a lot better than you can control phosphorous.
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Mr. Dubensky, could you tell us what you have done to improve silvicultural practices as far as water quality is concerned? And since there are always improvements needed, are you aware of the kind of further progress in that area that you need and can make?
Mr. DUBENSKY. When Mr. Barrett talked about the 1987 amendments and the addition of the Section 319 Program and the requirement that States submit nonpoint source programs to EPA for approval under the Section 319 Program as part of that submission, silvicultural practices are part of that submission.
In every State where there is significant forestry activity going on, they have best management practices approved by EPA. Then if you look at some of the results that have occurred from the Section 305(b) reports that I talk a little bit about in my testimony on page 10 is to show that silviculture has made significant progress both in the fewer listings under Section 303(d) and—
Mr. GILCHREST. So far, your working relationship with EPA has been beneficial?
Mr. DUBENSKY. We have worked tremendously with the States and have adopted a sustainable forestry initiative within our association that requires everybody to implement BMPs, and we have a logger education and training program. We have gone out and—
Mr. GILCHREST. So there has been a lot of implementation of BMPs. Are there any other things that you can plug into BMPs to further improve silviculture as far as water quality is concerned that would meet this new Clean Water Act action plan? What is the fear that you have?
Mr. DUBENSKY. I think we have made some tremendous progress, and what we would like to see at the State level is to do some more documentation of compliance of the BMPs. Right now we show 85, 90, 95 percent compliance through State audits every couple of years in different States. We would like to see—
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Mr. GILCHREST. When you say 85 to 95 percent compliance, does that mean one area, one region of forestry, is complying 98 percent and another region is complying 60 percent?
Mr. DUBENSKY. No. These are site-specific numbers and aggregated up to a State level.
We would like to see more documentation, more effectiveness studies at the State level, to actually do monitoring and sampling, which would prove our points about the success of the program. And they have been done in several States around the country and do show that progress. the proof is in the Section 305(b) reports the EPA and the States report on.
Mr. GILCHREST. Mr. Chairman, I can't see the light, so I assume that I have about four and a half more minutes.
[Laughter.]
Mr. GILCHREST. Mr. Lyons, did you want to respond?
Mr. LYONS. I just wanted to emphasize that I think the timber industry has done some very creative and innovative things in trying to get out in front of some of these issues.
I just returned from Washington State where the industry voluntarily engaged in a dialogue facilitated by the State in creating something called the Timber, Fish, and Wildlife Agreement in which they have put in place basically a system of conservation buffers similar to the agriculture buffers to address the dual concern of water quality and salmon habitat restoration. It has been a very effective program.
In fact, the agricultural community now is engaged in a similar dialogue in attempting to put standards together that they can put in place.
Similarly, we worked with a number of companies in developing habitat conservation plans under the Endangered Species Act. In one instance I am aware of in Washington State again, the HCP includes provisions to address water quality concern as well as salmon habitat concerns. These are very creative solutions to getting at very complex problems. I think there has been a lot of leadership shown within the industry in that regard.
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Mr. GILCHREST. If I could recommend a book, it is ''The History of Water in the United States from the 1500s to the Present'' written by an engineering student of MIT who helped clean up the sewage treatment plant problem in Boston. It discusses the hydrologic cycle. It is called ''Water'' and it is written by this professor, Alice Outwater.
It is quite fascinating.
Mr. BOEHLERT. Thank you very much.
Wayne's World. He is our answer to Oprah. His book of the month.
[Laughter.]
Mr. BOEHLERT. Mr. Dubensky, let me just ask a quick question before turning to the very distinguished Vice Chairman of the subcommittee.
Industry does monitoring and sampling. Do you do it on a regular basis? All industry? Is it universal or is it just some that are more enlightened than others? And when you call for more data and more monitoring and sampling by the States, is it because you are confident that if they did more that would confirm what you already know?
That leads me to the conclusion that if you are not doing more monitoring and sampling, and if it isn't universal within the industry, then it might be in your enlightened self-interest to do so.
Talk to me a little bit about that.
Mr. DUBENSKY. Sure.
The industry land ownership is about 15 percent of the forest land base. The majority land is in the non-industrial land ownership category—farmers—and they own approximately 60 percent. The rest is in public ownership.
We do a lot of research through our technical research arm and spend millions of dollars on a variety of subject areas in wildlife and landscape ecology, on water quality, on forest sequestration, on a variety of issues. We do monitoring and sampling in discreet locations, but in order to get the biggest bang for the buck and to utilize some of the Section 319 funds that we think should be dedicated to looking at and examining the BMP effectiveness in the forestry—in fact, we do believe we are open and want to expose ourselves to the idea of examining the effectiveness of our forestry practice because we are confident that they are achieving and meeting water quality standards.
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When we talk about the TMDL Program and whether the August 1999 proposal is in the right direction, we just seem to feel it is too dictatorial. As Mr. Barrett discusses, it is trying to allocate a daily load to a nonpoint source activity that we just don't see as feasible. It is part of a weather event. And we see that there are other flexible mechanisms that can be utilized to attain the same results.
We are not saying that we are opposed to the TMDL Program, we are just saying that we think there is a better way to do it. And we think that by utilizing the partnerships, utilizing the Section 319 Program, doing some of the things that our AF&PA sustainable forestry initiative talks about in terms of logger education and training, in terms of implementation of BMPs, in terms of our landowner assistance programs—all those are bits and parcels of a program that we think will achieve the same results at a lot lower cost.
Mr. BOEHLERT. Thank you.
The Chair now turns to Mr. Sherwood.
Mr. SHERWOOD. Thank you, Mr. Chairman.
Mr. Lyons, I would like to delve into that a little more deeply in the forestry and agricultural aspects.
I am very familiar with what we have in Pennsylvania and nearly 60 percent of Pennsylvania is forested. That is about 17 million acres. And 80 percent of this resource is owned by about 500,000 private landowners. That leaves the average timber holding in Pennsylvania at 23 acres apiece. There are big ones and small ones, but the average is very small.
The farmers and the landholders in Pennsylvania have been the greatest stewards of our water because they are the people that control the runoff and we have had wonderful initiatives like the sustainable forestry initiative where they shut down in the spring. We do have buffers. We are very careful about logging along the stream bed. And our farmers have been working for years with the Chesapeake Bay initiative to control nutrient runoff, build manure storage, and keep the clean water clean. And we have made great strides on these voluntary programs.
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It appears to me that now EPA is trying to redefine the whole debate. Instead of doing the things that need to be done—like, in my district I have an old mine tunnel that dumps 350 million gallons of acid mine water in a river every day—instead of going after those very secure and well-known point source polluters, they are trying to redefine the system and go after the negligible ones and make it a bureaucracy that is to top-heavy and unwieldy that I don't see any chance of success.
That is why I am quite interested. Your letter the other day said if the cost of the proposed rule imposed costs in the hundreds of millions of dollars and potentially billions of dollars, then it is essential that Federal agencies and States have a greater awareness of these costs and the alternative means of achieving them—talking about some cost-benefit analysis, which I am very interested in.
Why are you backing away from that letter?
Mr. LYONS. The reason we are backing away from the letter—as you put it—is because it didn't go through clearance and wasn't officially signed off on. It doesn't mean that we are backing away from the issue of costs associated with implementing a TMDL strategy. We are working with EPA to try to get a refinement of those costs and an understanding of how they calculated the costs.
Also, we are insisting that they give due recognition to the cost-effectiveness of the voluntary programs we have in place the kind of systems we implement through USDA, through the Natural Resources Conservation Service, and the Forest Service in partnership with farmers and ranchers and forester landowners to do what you just described, to serve as good land stewards and to tackle some of these issues in an effective way.
Mr. SHERWOOD. But that is what they have been doing for the past 20 years. I think you are hitting an ant with a sledgehammer instead of living up to the reality of the real big polluters in the country.
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Does the Department still think that EPA should have performed a cost-benefit analysis of this rule under the Unfunded Mandates Reform Act?
Mr. LYONS. Congressman, as I said, we are working with EPA in trying to analyze what cost of implementation would be.
As far as who is getting hit—as you put it—we are trying to work with EPA and other agencies to make sure that we address those sources of nonpoint source pollution that we can to help address the remaining significant water quality concerns in this Nation. We have had tremendous progress over 20 some years under the Clean Water Act. However, clearly nonpoint source pollution remains a tremendous challenge that we have to address.
So we are working together to try to find the means to address that. Part of that is resources. This Congress would help tremendously if it would fund the programs we have talked about. Section 319 has been desperately underfunded. Those monies provide a critically important source of investment in dealing with nonpoint source pollution concerns. The farm programs that address conservation concerns—like CRP, WRP, and the Environmental Quality Incentive Program—are all desperately underfunded and they help tremendously.
Partnership with landowners on a voluntary basis is where we need to focus our efforts to get the job done.
Mr. SHERWOOD. I would suggest that EPA is underfunded in large part because of this type of power grabs, instead of doing what they are supposed to do.
Mr. Barrett, how would you address the issue of farm runoff and nonpoint source pollution?
Mr. BARRETT. Sir, the ex-USDA comments—I guess that is what they are now being described as—lay out an excellent road map for how to improve our existing Section 319 Program. Those comments were enthusiastically agreed with by ever agricultural organization in this country, including all 50 State departments of agriculture.
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The USDA comments that are being withdrawn clearly and concisely laid out both the legal problems with the approach EPA is trying to take and the practical problems. You can't control the rain. If we can move forward—if we can improve Section 319—I agree with Mr. Lyons that Section 319 needs more money and needs to be made into an action-oriented program rather than what it is now, which is basically just a process-oriented program. That is our road map to solving nonpoint source pollution in this country.
Mr. SHERWOOD. Thank you.
Mr. BOEHLERT. Thank you very much, Mr. Sherwood.
And thank you all very much for being resources. We will be talking more to all of you.
Before we go to the next panel, we have Wayne's World, Chapter Two.
The Chair recognizes Mr. Gilchrest.
[Laughter.]
Mr. GILCHREST. Did you ever hear of Rodney Dangerfield?
[Laughter.]
Mr. GILCHREST. Another book I recently read—for silvicultural and agricultural people especially—''Nature's Services'' is written by about 15 or 20 people in the field of agriculture, who are experts in agriculture and want to preserve agriculture. It deals with water, the complexity of the soil, those little critters that pollinate most of our fruits and vegetables, and those little critters that naturally control pests.
It is a fascinating next-generation in our perspective on silviculture and agriculture. ''Nature's Services''.
Mr. BOEHLERT. Thank you very much.
I thank all of you.
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Mr. BOEHLERT. Our next panel consists of David Williams, Director, Wastewater Services, East Bay Municipal Utility District, Oakland, California, representing the California Association of Sanitation Agencies; Richard A. Parrish, Senior Attorney, Charlottesville, Virginia, representing the Southern Environmental Law Center; and Richard F. Schwer, Senior Environmental Consultant, DuPont Company, Wilmington, Delaware, representing the Clean Water Industry Coalition/Chemical Manufacturers Association.
Gentlemen, your entire statements will appear in the record at this juncture. We would ask that you try to summarize in five minutes or less. We are under some time constraints so we are going to try to wrap up by noon.
We will go in the order introduced.
Mr. Williams?
TESTIMONY OF DAVID WILLIAMS, MANAGER, WASTEWATER OPERATIONS, EAST BAY MUNICIPAL UTILITY DISTRICT, OAKLAND, CALIFORNIA, ON BEHALF OF THE CALIFORNIA ASSOCIATION OF SANITATION AGENCIES; RICHARD A. PARRISH, SENIOR ATTORNEY, SOUTHERN ENVIRONMENTAL LAW CENTER, CHARLOTTESVILLE, VIRGINIA; AND RICHARD F. SCHWER, SENIOR ENVIRONMENTAL CONSULTANT, DUPONT COMPANY, WILMINGTON, DELAWARE, ON BEHALF OF THE CLEAN WATER INDUSTRY COALITION, AND THE CHEMICAL MANUFACTURERS ASSOCIATION
Mr. WILLIAMS. Thank you, Mr. Chairman.
I represent CASA, the California Association of Sanitation Agencies, and I am also director of wastewater of a large public agency in Alameda, California.
I would like to focus my comments in three areas: first, the proposed TMDL regulations; second, the California experience; and third, CASA recommendations for improvement of the regulations.
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By way of background, I think we all agree that the technical base secondary treatment standards were a huge success. I guess we do what is easiest first. In part due to litigation, the focus is now on the TMDL under Section 303(d). CASA hopes that any actions will be equitable, but we think it is very important to be mindful of the social, environmental, and economic impacts on the people we serve.
But this is not what we are seeing. We are seeing a continued focus on NPDS permits. We are concerned that this would result in high costs with little benefits.
Let me turn to the TMDL regulations themselves. There are several things that we think are good in there and I would like to enumerate these. First, requiring States to adopt a listing methodology to identify the impaired water bodies is excellent. We support a TMDL implementation plan that is stipulated in the regulations. We also support relying on sound scientific data, something we have preached for many years. Finally, requiring public participation is essential.
However, everything is not a bed of roses. There are areas in which we have concerns and I would like to address five of these areas.
First, we do not support a regulatory program that backs away from the watershed process. Despite advocating watershed management, we feel that the regulations revert to a command-and-control. They give EPA significantly more power and allow EPA to essentially trump the State's efforts in their development of a water quality control program.
Second, TMDLs are only one tool to control pollutants. However, it appears that they are going to be the weapons of choice and we do not feel that this is what Congress intended.
Third, we advocate an in-depth water quality standards review on a regular basis. Section 303(c) requires triennial reviews. These are rarely done, and they are not done in-depth. TMDLs are triggered by failure to meet water quality standards, so doesn't it make sense that in conjunction with the TMDL regulations we would also have the long-awaited EPA regulations on water quality standards promulgated at the same time?
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Fourth, we believe that EPA has gone beyond its statutory authority in requiring pollution, endangered species, drinking water issues, and anti-degradation—it exceeds the mandates of the Clean Water Act.
Fifth, we think EPA's cost estimates are flawed. It appears that they have taken an incrementalized approach and are looking only at the listing of the waters and adopting the TMDLs and implementation plans instead of the total costs from listing all the way through attainment. And there will be significant costs on discharges such as POTWs, industry, stormwater, and even landowners associated load allocations and waste load allocations.
One of the reasons we were invited here to testify is to provide some background on what is happening in California. As you are probably aware, there are several lawsuits going on in California. Just recently, I am representing CASA. CASA, along with SCAP, which is the Southern California Alliance of POTWs, filed a lawsuit against the EPA over the Clean Water Act issues, including Section 303(d) issues. We are frustrated with the listing process and the implications on future permits.
I would like to tell you about a case study as an example of this frustration. This has to do with the Sacramento Regional County Sanitation District that serves the greater Sacramento area.
Sacramento Regional is a member of CASA. It discharges into the Sacramento River, which flows into the Bay Delta into San Francisco Bay. Both the bay and the delta are listed for mercury. Mercury is a legacy pollutant. It comes from old mines that are now abandoned and atmospheric deposition.
Sacramento Regional contributes less than 1 percent of the mass of mercury to the Bay Delta. This has been documented. This chart shows the POTW industrial contribution on the far right. As you can see, compared to the other contributions, it is extremely small.
Even so, Sacramento has spearheaded efforts to secure congressional funding for stakeholder-driven watershed programs to address water quality issues such as mercury. Sacramento has spent a large amount of staff time on this. They have also spent over $500,000 per year since 1995 in collecting data and fostering this watershed approach, which ultimately results in TMDL calculations and implementation plans.
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We feel Sacramento should be applauded for this. However, they are facing severe discharge restriction in terms of interim limits before the TMDLs are actually computed. If other permitting proposals overseen by Region IX of the EPA are indicative, Sacramento could have interim mass limits imposed. This would have significant restrictions upon their growth and economic development for the communities they serve. It is also possible that they would have elimination of dilution and mixing zone and zero discharge requirements for some pollutants—all of this before the TMDLs have been identified.
We feel the interim limits being considered presuppose the outcome of the TMDLs and makes them essentially worthless. After all, aren't the TMDLs supposed to be the fair allocation of the loads to all the sources?
In short, CASA wants to ensure that TMDLs do not become a mechanism to require treatment for treatment's sake. We have some suggestions.
Re-energize the Section 208 planning process. We think this was good. The original price tag was scary, it got put on the shelf, and nothing has been done since. A directive to EPA to fix this would be helpful.
Second, recognize the benefit of the Section 305(b) reports. These reports contain excellent information that should be used in the decisionmaking process.
Third, discourage overly stringent permit requirements prior to TMDLs. We are seeing this in California at EPA's urging. It is not required under the Clean Water Act and would be very helpful, particularly in the adversarial situations in California and elsewhere.
Finally, encourage an economic development analysis component as part of the water quality standards adoption revision.
In conclusion, CASA believes that to achieve full compliance unfortunately is going to take more time and money and that a broader approach that relies not only on the TMDLs, but other existing tools of the Clean Water Act should be initiated. There maybe some minor revisions necessary for the Clean Water Act, but we think they should be minimal and rely on the existing authorities to do the job in an equitable manner.
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I actually have some language here that I would like to introduce, some minimal changes to the Clean Water Act.
Thank you for the opportunity to testify.
Mr. BOEHLERT. Thank you very much. That will be included as part of your testimony.
Mr. Parrish?
Mr. PARRISH. Good morning, Mr. Chairman and members of the subcommittee. Thank you for the opportunity to address you on this important issue this morning.
My name is Rick Parrish. I am an attorney with the Southern Environmental Law Center, a regional environmental advocacy group located in Virginia and working throughout much of the south.
First, I would like to remind us all today that there are a couple of key fundamental notions about which there is virtually unanimous agreement. First is the importance of clean water and healthy aquatic ecosystems to the people of this country, both as expressed through Congress in 1972 and even today. Next is the sad fact that about 40 percent of the waters being monitored do not meet the standards necessary for them to be used for their intended purposes—be that fishing, drinking, swimming, or simply as aquatic habitat.
The TMDL Program was included in Section 303(d) of the Clean Water Act over 25 years ago as a means to address the most serious water pollution problems in the country through a comprehensive watershed-based approach. There has been a lot of progress in other programs—particularly the point source discharge programs—over the last 28 years. There has been little to no progress under the TMDL Program in cleaning up our Nation's most polluted waters for a whole range of different reasons. EPA, to its credit, is taking a rather bold step, I believe, in trying to strengthen those regulations currently.
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EPA's move to try to strengthen the regulations has met with almost universal dismay or disdain by parties and interest groups who would rather maintain the status quo. The status quo has not produced what Congress directed in 1972. It has not cleaned up our worst polluted waters. For that reason, I strongly support EPA in its initiative to clarify and strengthen the TMDL Program.
In my view, the single most important step EPA is taking right now is including the requirement of an implementation plan in the definition of the TMDL-based watershed restoration plan that will be developed primarily by States and reviewed and approved by EPA. That is another important point to remember about this entire program: it does defer to State primacy, it does anticipate extensive local involvement. EPA is creating some accountability. EPA is saying that we need a system States can manage, that local governments and all interest groups can be intimately involved in, but that if you don't do it right, we are going to make sure it gets done right.
EPA doesn't have a lot of options for doing it right, especially with regard to nonpoint sources, because EPA has no regulatory authority over most nonpoint source activities. That is why you see the tremendous amount of attention given to nonpoint source issues, and frankly, a fairly insignificant part of this rule, the silvicultural component.
I strongly support EPA's efforts to include the nonpoint source arena within the TMDL Program because, simply, without it the program cannot succeed. While it is not perfectly clear what Congress meant in 1972, what Congress said was that waters that are polluted that cannot be fixed by point source controls need to be brought into this TMDL-based watershed program.
Waters impaired by nonpoint sources cannot be fixed by point source controls. I think it is a perfectly reasonable interpretation of that language that they have always belonged in the TMDL Program and they need to remain there now.
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As for the silvicultural rules, I would repeat what was noted earlier, that there is no silvicultural exemption in the Clean Water Act for point source controls. There is an agricultural exemption and there was a regulatory policy decision some 20 years ago to keep the vast majority of silvicultural operations outside of the point source program. EPA is now saying, in those very limited circumstances where EPA is going to have to come in and repair the damage done in a watershed to which silvicultural operations have contributed, we are going to consider designating on a case-by-case basis certain aspects of those operations as point sources.
Let us look real briefly at what would be required. First, that silvicultural operation has to have caused significant water pollution damage. It has to have caused it already. Second, the State agencies responsible for fixing that damage have to have thrown up their hands and walked away and said that they can't fix it. Whether it is because they don't have the legal authority, the political will, or the resources—it doesn't matter. State agencies will have to have walked away from their primary obligations.
Only then will EPA consider designating on a case-by-case basis where they can identify point sources—and those are pipes or ditches or other discreet conveyances that transfer the pollutants, primarily sediment, from the forestry operations to the streams. Only under those extremely rare circumstances will EPA consider designating that silvicultural operation as a point source, and only then if it is the last resort available to EPA to fix a serious pollution problem.
I think the rhetoric that has flown around that component of this rule is not only inaccurate, but irresponsible. If the forest products industry is as successful as I hope they are and they say they are in controlling water pollution from forestry operations, then this portion of the rule will never have to be implemented. It will only be implemented, in fact, when it is needed.
Thank you.
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Mr. BOEHLERT. Thank you very much, Mr. Parrish.
Mr. Schwer?
Mr. SCHWER. Good morning, Mr. Chairman and other members of the subcommittee. I am Dick Schwer and I have been doing environmental work for the DuPont Company for over 28 years. At present, I am a senior environmental engineer responsible for water quality issues.
I am pleased to appear before you today on behalf of the Clean Water Industry Coalition, CWIC, and the Chemical Manufacturers Association, CMA, to discuss EPA's TMDL proposals.
CWIC's membership is made up of more than 250 companies and trade associations representing the Nation's major manufacturing and surface industries. CMA's member companies represent more than 90 percent of the productive capacity for basic industrial chemicals in the United States.
Mr. Chairman, the country has made tremendous improvement in water quality since the passage of the Clean Water Act. Industry fully supports the goals of the Act. Still, many water quality challenges lie ahead.
Given the unique and highly complex nature of these challenges, EPA must recognize that future gains in water quality protection will not be made through one-size-fits-all approaches. Effective and meaningful improvement can only be accomplished through comprehensive watershed approaches that are flexible, based on high-quality data, and concentrate decisionmaking at the State and local level.
While we agree that well-crafted TMDLs can be useful water quality protection tools, we stress that they are not the only tool in our toolbox. They must not be considered the universal solution for all the Nation's remaining water quality concerns. TMDLs do have their place in State water quality management programs. However, as proposed, EPA's TMDL rules will not lead to more effective water quality management.
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We urge EPA to modify its proposed TMDL rules to incorporate the following elements:
First, any final TMDL rule should acknowledge and maintain the State's lead role in protecting water quality. Second, recognize that high-quality data must be the cornerstone of the TMDL Program. Third, provide flexibility for States to set TMDL priorities. And lastly, the rules should include critical missing elements such as phased TMDLs, a practical listing and de-listing procedure, and allow for effluent trading.
Moreover, EPA must develop an accurate and comprehensive analysis of the cost of the TMDL Program it has proposed. Last week, the States told the subcommittee that the annual cost of TMDL development could exceed $1 billion. This is a tremendous financial burden for the States.
Additionally, before the proposed TMDL rules are finalized, EPA needs to conduct a comprehensive cost study of the rules, financial impact on State and local governments, as well as on the private sector.
In closing, industry supports well-crafted watershed protection approaches that provide States with the necessary flexibility to prioritize their efforts, utilizing the full range of tools to maximize water quality improvements.
Mr. Chairman, thank you for the opportunity to appear before you. CWIC and CMA would be pleased to work with you and other members of the committee, as well as EPA in order to develop an effective and efficient TMDL Program.
I would be happy to answer any questions.
Mr. BOEHLERT. Thank you very much.
Mr. Borski?
Mr. BORSKI. Thank you, Mr. Chairman.
I would like to make an observation, if I may.
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We have just heard from municipal dischargers, an environmental organization, and the business community. All three raise issues on the proposed rule, but all three emphasize the need to make some sound investments to finish the job of cleaning up the Nation's waters.
We must listen to the issues raised in the two days of hearings—and I am sure EPA will make some modifications to the rule. While the details of the rule are extremely significant, we cannot lose sight of our ultimate goals and responsibilities to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
Thank you, Mr. Chairman.
Mr. GILCHREST [ASSUMING CHAIR]. You're welcome, Mr. Borski.
The gentleman from Michigan, Mr. Ehlers?
Mr. EHLERS. Thank you, Mr. Chairman. I apologize that I had another meeting and could not be at the earlier part of this. I do want to thank you and the chairman for holding this hearing. It is a very important issue and I appreciate the testimony offered.
I don't think it would be fair to ask a question since I missed most of the meeting. I might ask something that has already been covered, so I would yield back.
Mr. GILCHREST. I thank the gentleman from Michigan.
Mr. Schwer from DuPont, I have a general question. With your knowledge and background and skill in environmental efforts for the DuPont Company and the Chemical Industry Council, would you say that we as a people today have the technical skill to engineer—whether it is a structure for point source solution or understanding that the rhythms of the natural environment—a system to not only improve water quality but to sustain water quality for drinkable, fishable, and swimmable areas?
Mr. SCHWER. Yes, Mr. Chairman, I think we have many of the tools in place to be able to create such a system. I think what we need is a good database to make the right decisions as to what sort of system is the most appropriate for that natural system.
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Mr. GILCHREST. So we have the skill and the technology to do that, whether it is nonpoint source pollution or point source pollution.
When you mention the data needed, are you talking about the water quality standards to determine what systems—
Mr. SCHWER. I am talking about the database for the receiving water. I think it was mentioned by the GAO last year that really only six States feel like they have adequate data in order to be able to make TMDL decisions. I think the same type of need is in other areas just to make basic decisions on these very complex water quality requirements so that we can make the right kind of decision in order to establish the systems that can be most effective in helping the environment out.
Mr. GILCHREST. I understand that.
It is my understanding that that is what the EPA, along with the States, are now in the process of doing—collecting that data—to determine where the pollutants or nutrients are coming from.
Mr. SCHWER. Yes, they are in the process of collecting data, and the data they have will certainly be helpful. But for some of these issues that we need to deal with, we really need a much fatter database.
Mr. GILCHREST. I would agree with you. We don't want to set a standard that is—do you have a problem with the manner in which the EPA is now collecting that data?
Mr. SCHWER. I really don't have a problem with the manner in which they are collecting the data. I guess I can only suggest that we need even better efforts, working with the States, to collect additional data where it is necessary.
Mr. GILCHREST. I don't know how EPA is doing it in other areas, but I know in the State of Maryland—and I have discussed this with our Maryland Department of the Environment, with EPA people on a regular basis, with everybody in the same room—and it seems that the data collection system they have put in place is fairly thorough and there is not a big disagreement that EPA is coming in with a hammer to require anything that the States, as the process proceeds, would not agree with.
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In your experience, are there some areas around the country where this data collection is being disrupted? Where EPA is using a heavy hand and the States are not involved?
Mr. SCHWER. No, I think it is more of a resource situation, Mr. Chairman, just having the adequate amount of resources in order to be able to get a comprehensive high-quality database in order to make the proper environmental decisions.
Mr. GILCHREST. You said the listing methodology was good, collecting sound data was important—that seemed to be good—public participation—that seemed to be pretty good as well. Some of your concerns were the regulatory program that backs away from watersheds. Do I have that correct? I think Mr. Williams mentioned that as well.
That comes as a surprise to me because my perspective on a TMDL—at least in my district—is a watershed approach. Can you explain what you mean, that a TMDL program by EPA backs away from a watershed approach?
Mr. SCHWER. Mr. Chairman, a TMDL is just simply one tool in a watershed approach. It is more appropriate for continuous point sources. I think the nonpoint source issues—other types of issues can benefit from other types of programs which are currently operating and successful, such as a Section 319 approach for nonpoint sources. A watershed approach really involves bringing all stakeholders together and looking at all the tools to assess the water quality and make the best management decisions. TMDLs are one of those tools.
Mr. GILCHREST. So you don't want to dismiss the TMDLs?
Mr. SCHWER. Certainly not. In my testimony, I said that I believe they certainly have their place in the watershed program.
Mr. GILCHREST. So you would like to see EPA, in its clean water action plan, using TMDLs to do what, then? Using TMDLs as one of the tools in the whole watershed program?
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Mr. SCHWER. Use it as one of the tools in the watershed program.
Mr. GILCHREST. I am under the assumption that it is one of the tools, but not the major tool.
Mr. Williams?
Mr. WILLIAMS. The issue I was raising was the fact that EPA has in the past committed to cooperative local watershed approaches. We feel that the way the TMDL regulations are written it gives EPA much more authority and basically allows them to trump these local approaches. In fact, they are doing that right now. They are leaning on regional boards in the State of California to implement certain regulations in the permitting process.
Mr. GILCHREST. What do you mean by that?
Mr. WILLIAMS. In terms of what are going to be going into permits right now before TMDLs are—
Mr. GILCHREST. For development? For water discharge?
Mr. WILLIAMS. For water discharges.
Mr. GILCHREST. There is no time frame that they are issuing regulations for TMDLs now for present discharge use? I thought there was a time frame before this kicks in.
Mr. WILLIAMS. There are TMDLs that these regulations will set the framework for. But right now is an interim period and there are permits that are actually being heard this week at the regional board levels in California that have requirements in there that are very stringent requirements that are basically being urged by EPA to have the regional board implement these in permits.
So our feeling is—
Mr. GILCHREST. The reason the boards don't want to implement these types of new processes is what? Your concerned that EPA is jumping the gun?
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Mr. WILLIAMS. Yes, they are jumping the gun. They are putting in—
Mr. GILCHREST. Because you don't think the data is conclusive to show that it is necessary to make those technical changes?
Mr. WILLIAMS. The data is not conclusive. It puts discharge in a very awkward position to basically have interim limits in their permit betting that the TMDL is going to completed in some period. If you can't meet those interim limits within the time frame that that TMDL is going to be completed, you are going to have to start the whole process of planning, design, and construction. Otherwise, if you wait and the load allocation that you ultimately get is less than what your discharging, you are going to be in immediate violation.
So when these interim permits are written with these very stringent requirements—these numeric limits in there—it forces the discharger to either roll the dice or begin the planning design process to construct facilities that will ultimately meet those limits.
Mr. GILCHREST. What would you like to see EPA do in terms of the interim?
Mr. WILLIAMS. In terms of the interim, we don't feel that you should be putting essentially water quality-based effluent limits in the permits right now prior to the TMDL even being developed. We feel that there is an approach that you could require stringent source control programs that would take that approach, but not put those numeric limits in the permit and essentially put the discharger behind the eight ball waiting for the TMDL to be developed.
Mr. GILCHREST. Mr. Parrish, are you familiar with Mr. Williams' problem?
Mr. PARRISH. Not with that particular problem, no. I have certainly heard similar stories from elsewhere in the country.
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To go back to your original question, EPA clearly considers the TMDL Program as the technical backbone to the watershed approach to water quality planning and management. It is the only approach that looks at the big picture and decides over the long run what needs to be done to clean up our worst polluted waters.
We cannot expect everything to stop in the meantime. The TMDL Program, as outlined in these new proposed regulations, would extend for 15 years. That is under the best, rosiest scenario. There are a lot of people out there suffering under the conditions where their local waters either can't be used for fishing, swimming, or aren't suitable for wildlife. They aren't interested in waiting 15 years, or what will likely be longer, to have those waters cleaned up.
So clearly there are some interim steps—some ratcheting down on existing permits—that are necessary. In Mr. Williams' situation, I have never heard of a TMDL that included a waste load allocation for a specific discharge permit that had to be met immediately. They are always adopted with the understanding that permits need to be changed, plant modifications need to be made, and there is a compliance schedule included.
Again, I obviously can't speak to his situation. I am sure there are going to be more difficult circumstances in some localities than others. If this problem were an easy, simple, quick, inexpensive problem to fix, we would have done it long ago.
Mr. GILCHREST. Mr. Williams?
Mr. WILLIAMS. I will give you an example.
There is a permit being heard this week at the Regional Board in California. It includes a 10-year time frame, at which point the discharger is to go to zero discharge. In a 10-year time frame going to essentially zero discharge you have to begin planning right now, today. If you don't begin planning right now, today, you are not going to—
Mr. GILCHREST. Are we talking about a sewage treatment plant?
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Mr. WILLIAMS. This is actually an industrial discharger.
One of the concerns the POTWs have is that it is widely known that this permit will be precedent-setting. There are 27 permits backed up. They are all going to be issued. This one sets the precedent, and the next one is going to be the same thing. That is our concern. You can't roll the dice. If I have something in my permit, I have to do the planning, design, and construction right now so that at the end of 10 years.
Mr. GILCHREST. Are you saying that in the State of California, since it is likely that in 10 years the State—not the Federal Government—will mandate a zero discharge for industrial discharges, for sewage discharges of nutrients and so on, and that if you plan now with what EPA wants you to do, you actually might not meet the State's standards within 10 years and you would have to do it all over again?
Mr. WILLIAMS. In my letter I reference a letter from the EPA regional administrator to the Regional Board saying that a loading of zero is going to be required. That is what I am talking about, the backing away from the local watershed approach to developing these programs at the State level. We feel that these TMDL regulations, as written, are going to empower EPA to look over the shoulder of the State as they are doing it.
We don't think that was actually the intent. This is not a serial process where the State goes through all the resources to develop a TMDL and the EPA picks that up and goes through spending all the resources to reanalyze that TMDL. Our understanding is that the States have primacy. They do it, they certify to EPA that it is done, and EPA approves it.
Mr. GILCHREST. I would agree with you that in many areas the States have primacy. If you look at the States back east, though, a river will flow through several States in just a short area of mileage. If one State that has primacy doesn't have as strict rules as the State downriver, then the State downriver suffers. So there needs to be some sort of consistency and equity in the distribution of this—I hate to use the word mandate—but in our further continuing understanding of the Clean Water Act and how to improve water quality standards.
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If you know that you are going to be required to have zero discharge from the State of California, what then is the problem of this interim plan which will incrementally reach that goal. Is it the dollar amount? Is it the actual structure of the system?
Mr. WILLIAMS. If you have a zero discharge, and the TMDL when it actually comes out says, ''You really lucked out, you can have X number of pounds per day of discharge''—what have you done in that period? You have spent millions of dollars building facilities—
Mr. GILCHREST. You are talking about the mercury that comes from closed mines that—
[Chart presentation.]
Mr. WILLIAMS. This is from the Regional Water Quality Control Board. This is out of their technical report that will set the mercury TMDL for San Francisco Bay. What I have here are the annual loadings in kilograms of mercury. As you can see, it goes from zero up to 3,000.
Then we have along the X axis here the various sources. This is Central Valley. You see the purple is current and the green is allocated. In their technical report, which is going to be the basis for their mercury TMDL, the Regional Board shows that we have a very high input from Central Valley abandoned mines, all other sources such as aerial deposition—
Mr. GILCHREST. You control pollution from abandoned mines?
Mr. WILLIAMS. Some of these mines are just running free and are a major source of mercury into San Francisco today.
Mr. GILCHREST. There is no technical advance right now that anybody is aware of to stop that?
Mr. WILLIAMS. You can stop it, but it takes money, and these are abandoned, so who is going to come up with the money to do this?
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Mr. GILCHREST. So in other words, the mercury that is coming into the San Francisco Bay from abandoned mines will continue to do so until it is all flushed out?
Mr. WILLIAMS. A long time.
Mr. GILCHREST. So 100 years, 200 years?
Mr. WILLIAMS. Yes.
Mr. GILCHREST. And you are saying that EPA is not taking that into consideration when they are coming up with TMDLs for you?
Mr. WILLIAMS. Actually, I thought the Regional Board did a pretty good analysis on this TMDL. What you see here is the current, you see that we have sediment, then you have the Guadaloupe River down near San Jose with an abandoned mine upstream. You have the urban runoff. And here you have POTWs. We are actually less than one percent of the loadings to San Francisco Bay.
Mr. GILCHREST. What is POTWs?
Mr. WILLIAMS. Publicly owned treatment works.
So when you see the allocation that the State agency came up with, it looks very reasonable. It is way down here.
Our concern is, Do you really want to spend tens of millions of dollars putting interim limits into a permit so that POTWs have to start immediately on the planning, design, and construction process to remove this little bit, then wait for the TMDL to finally come out and decide whether you spent that money wisely or not. Even if the TMDL said that you needed to get down that low, does it really make sense from a societal point of view to spend tens of millions of dollars with no discernable impact on the receiving water? Less than 1 percent is no discernable impact.
Mr. GILCHREST. But most of it comes from the mine sediment and things like that? Is that what you are saying?
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Mr. WILLIAMS. This is it. These are not our figures.
Mr. GILCHREST. So there is no plan to—it looks like some of the major problems you are having are areas that are not being addressed by the TMDLs from EPA?
Mr. WILLIAMS. Pardon?
Mr. GILCHREST. It appears that what you are saying to me is that the major problem in the San Francisco Bay Region for nutrient overload, sediment, toxins is coming from sources that are not going to be adequately addressed with EPA's TMDL Program?
Mr. WILLIAMS. They maybe adequately addressed with EPA's program. These permits are being issued this week and next week. When we get these permits and we get interim limits in our permits, we have to start right now.
Will these ultimately be addressed? There is a lot of discussion on nonpoint source.
Mr. GILCHREST. Do you think that—I don't mean to put you on the spot and I don't mean to sound so confused—the interim changes in the POTWs that are going to cost tens of millions of dollars—do you think that is necessary to happen eventually anyway?
Mr. WILLIAMS. I wouldn't do it. If I were the benevolent dictator and able to spend the ratepayer's money—whether tax dollars or rates to a community—I wouldn't spend that kind of money for that little benefit.
Mr. GILCHREST. The discharge EPA is trying to reduce or eliminate—that particular discharge from those areas is not harmful to water quality?
Mr. WILLIAMS. This is 1 percent. Tens of millions of dollars, 1 percent. I am just saying that—
Mr. GILCHREST. Is that 1 percent easily broken down in the water? Is that 1 percent of persistent effluence that will be a problem because of the accumulation of it over the years?
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Mr. WILLIAMS. There are a lot of unknowns, a lot of lack of data with respect to some of the biocumulatives. Mercury is bioavailable in its methelized state. There is also a tremendous transformation back and forth, once it gets into the receiving water. So there is a lot of lack of data.
Mr. GILCHREST. But what do you mean by 1 percent? Is that 1 percent of the total amount being discharged?
Mr. WILLIAMS. Total.
Mr. GILCHREST. But that 1 percent is consistent? That 1 percent would be cumulative over the years?
Mr. WILLIAMS. Depending upon whether it is—
Mr. GILCHREST. Let me give you what I am leading to.
There is a situation in the State of Maryland where about 1 percent of the problem of nutrient overload in the Chesapeake Bay will come from 18 million cubic yards of dredge material being dumped just north of the Bay Bridge. Some of the scientists who are agreeing with the Corps of Engineers that they should dump it there are saying that it is only 1 percent of the nutrients that enter the bay.
If you look at the number of nutrients that enter the bay from all sources, it is enormous. If you just take 1 percent and say that that is not bad, we will add that 1 percent—at first glance, it doesn't appear to be bad. But in that one spot, it is like adding a sewage treatment plant the size of the city of Annapolis with no controls.
Sometimes 1 percent doesn't sound like much in the scheme of things, but 1 percent at that spot means that spot isn't going to have the kind of natural web of life that it might otherwise have.
I don't want to spend too much money in the wrong direction, and that is why I asked the question. Do we have the technical skill to know how to keep water clean? Then, can we work together with EPA and the States to see the big picture and work in that direction? If we are spending unneeded dollars in this interim plan, then we ought to try to help you with that—either give you the money for it or slow it down. But if that 1 percent contains mercury and things like that, that ought to be a consideration for how we deal with that 1 percent.
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I appreciate your testimony and I don't mean to talk to you, who knows a lot more about this issue than I do, but I just have a certain perspective on it.
Mr. WILLIAMS. I think the example that you gave sounds like there is an action that is being considered in terms of, do you put it here or don't you put it there? POTWs that discharge into the bay, I would say offhand maybe five major ones and a half dozen smaller ones. They are discharging right now, they have active source control programs. They are actually looking to expand on these source control programs.
My point is that that is a reasonable approach as opposed to putting in limits that would force them to start spending a lot of money now with the uncertainty of what the TMDLs are actually going to be saying.
Mr. GILCHREST. Thank you very much.
Mr. Parrish, we have to leave because the room is going to be used for another hearing, but I can give you just a short response.
Mr. PARRISH. All I want to say is that this example highlights the need to move forward with the TMDL Program. This example is a permitting problem. These other sources and the potential for controlling these other sources would be encompassed in the TMDL-based watershed restoration plan.
I think that is what Mr. Williams would agree with. His concern seems to be the State and EPA moving forward with a permit, ratcheting down on a permit in advance of the development of the TMDL. The solution is to move forward with the TMDL.
Mr. SCHWER. I just wanted to say that certainly there are well-crafted TMDLs out there. But our major concern, again, is with the TMDL Program, that it is a command-and-control effort and does allow for sufficient State flexibility, working with the stakeholders in the watershed to make the right decision in a particular watershed using knowledge of that watershed that the stakeholders have.
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Mr. GILCHREST. Thank you very much.
Over the last couple of years, DuPont provided significant help and dollars in cleaning up one of our Superfund sites in Cecil County.
Gentlemen, thank you very much.
The hearing is adjourned.
[Whereupon, at 12:18 p.m., the subcommittee was adjourned, to reconvene subject to the call of the Chair.]
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