Segment 2 Of 2 Previous Hearing Segment(1)
SPEAKERS CONTENTS INSERTS
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TOTAL MAXIMUM DAILY LOAD INITIATIVES UNDER THE CLEAN WATER ACT
Thursday, July 27, 2000
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Oversight, Investigations, and Emergency Management, Washington, D.C.
The subcommittee met, pursuant to call, at 2:00 p.m., in room 2167, Rayburn House Office Building, Hon. Tillie Fowler [chairwoman of the subcommittee] presiding.
Mrs. FOWLER. The committee will come to order.
Before we begin with the witnesses, I would ask unanimous consent to allow Mr. Borski, Mr. Sandlin, Mr. Dickey, and Mr. Holden to participate in today's hearing. Without objection, we will so ordered.
We are holding this hearing today because we still have a long way to go in this country to clean up our lakes, rivers, streams, and estuaries. My district is right on the water, so I know how important clean water is, not only to our health but also to a sound economy. I also know we have made tremendous progress over the past 25 years, but more needs to be done to ensure that our waters are swimmable and fishable.
The Environmental Protection Agency is the lead Federal agency for controlling pollution in this country. We count on EPA, in cooperation with the States, to make sound decisions regarding the protection of our waters. Some Members of Congress, however, think that EPA in a critical rulemaking has placed politics in front of sound decisionmaking. The regulation I am referring to is the Total Maximum Daily Load regulation, or the TMDL Rule.
When the rule was first proposed in 1999, it immediately captured congressional interest. Many Members were concerned that the rule was the wrong way to go in improving our environment. Members believed the proposed rule reflected typical Washington-centered command-and-control regulation with little or no concern for the cost it would impose on our communities.
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In response to this proposed regulation, several Members of Congress—such as our colleague with us here today, Mr. Dickey—introduced legislation that would affect how the TMDL rule would be implemented. The strong congressional concern regarding the TMDL Rule was essentially reflected in a provision in the Military Construction and Emergency Supplemental Appropriations Bill that was sent to the President in June.
The provision in this bill prevented EPA from spending any funds in fiscal year 2000 or fiscal year 2001 to finalize or implement the new TMDL Rule. The President signed this bill on July 13th, in spite of the TMDL provision, which the Administration opposed.
Only 2 days before the bill was to become law, the EPA issued its final TMDL Rule. By signing the final rule, EPA ensured that the regulation would move forward, despite Congress' explicit intention. But to comply with the public law signed by the President, the final rule delayed the effective date of its regulatory changes until fiscal year 2002. Some Members have concluded that the EPA consciously hurried this rule along in defiance of Congress because the agency was more concerned about establishing a legacy than formulating good policy.
Part of the purpose of this hearing is to examine the flaws in the process EPA used in this rulemaking. Another purpose of this hearing is to assess possible solutions to some of the issues the final rule raises.
I look forward to receiving testimony today on both sides of these issues.
I recognize Mr. Borski for an opening statement.
Mr. BORSKI. Thank you very much, Madame Chairwoman. I thank you for holding today's hearing on the Environmental Protection Agency's Total Maximum Daily Load Rule and also from our dear friend and colleague, Congressman Dickey.
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 effluent limitations, we have taken the difficult steps necessary to deal with point sources of pollution.
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However, as we all know, addressing point sources of pollution has only gotten us so far in achieving the goals of fishable, swimmable waters. For years, I have been saying that to take the next step in improving water quality, we must more aggressively address nonpoint sources of pollution. Pollution from nonpoint sources, which may not be as readily apparent as point sources, is what prevents us from finally achieving the goal Congress established back in 1972.
That is why I was encouraged when the EPA proposed its TMDL Rule. This rule provides a mechanism to solve the water quality problems that remain. First, you find out where the water quality problems are. Then you identify the sources of the problems. And finally, you develop a plan to address these sources. What could be simpler? By looking for equitable reductions from all sources of pollution, we can ensure that thousands of additional river and shore miles and millions of additional lake acres no longer threaten the health and safety of our citizens and of the environment.
Madame Chairwoman, as I said during hearings before the Subcommittee on Water Resources and Environment last February, any efforts to further strengthen environmental protection generates a great deal of controversy. Throughout the debate on the TMDL Rule, we have heard that we need more study, we need more data, and we need more science. It is as if the opponents of the rule believe that the need for the rule is without basis.
But there is substantial basis for the rule. Congress has known of the problems associated with nonpoint source pollution since the original 1972 Act. For example, in Section 208 of the 1972 Act, Congress called upon the Governors to develop plans to identify agricultural-and silvicultural-related nonpoint sources of pollution, including run-off from manure disposal areas and from land use for livestock and crop production and to set forth procedures and methods, including land use requirements, to control to the extent feasible such sources.
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Let me also refer to the EPA's biennial water quality inventory. That is water quality information provided by the States. The water quality inventories for 1988, 1992, 1994, and 1996 and 1998, the States reported that the leading cause of water quality impairment in rives and lakes was agriculture. For estuaries and coastal areas, the leading causes have been municipal discharges, industrial discharges, and urban run-off and storm sewers.
These reports clearly indicate that nonpoint source pollution is not the only problem, but for rivers and lakes it is the greatest problem. Congress has known of the significance of nonpoint sources to water quality impairment since 1972 and the States continue to affirm it.
The TMDL process is the best process available under the current law to fairly address all forms of polluted waters, whether it is point or nonpoint.
Thank you, Madame Chairwoman.
Mrs. FOWLER. Thank you, Mr. Borski.
I would now like to turn to the chairman of our full committee, Mr. Shuster, for his opening statement.
Mr. SHUSTER. Thank you very much. I will be brief because we do have a vote underway. I certainly congratulate you for holding this hearing and I am particularly pleased to welcome Congressman Dickey, who has been a champion on this issue, looking out for his constituents, farmers and small business people.
I would just like to quote something from the National Governors' Association, who wrote to the President. ''The one-size-fits-all approach proposed by the regulations will inevitably fail, resulting in mountains of paperwork and no appreciable improvement in water quality.''
We certainly look forward to hearing from you, Congressman Dickey.
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Mrs. FOWLER. Thank you, Mr. Shuster.
Before we go to the next opening statement, I would like to ask unanimous consent to allow Mr. Boehlert to participate in today's hearing. Without objection, so ordered.
Mr. Terry, do you have an opening statement?
Mr. TERRY. Given the time constraint, I will submit it for the record.
Mrs. FOWLER. Thank you.
Mr. Boehlert, do you have an opening statement?
Mr. BOEHLERT. I do, and I want to speak to this subject because I feel very strongly about it.
TMDLs are useful tools provided by the Clean Water Act to bring water bodies into compliance with water quality standards. I support the Clean Water Act's TMDL program. I am pleased that EPA, States, and Congress are finally turning their attention to this program and are providing more resources for States to move ahead and develop and implement TMDLs under existing regulations.
I was pleased with Chairman Walsh's markup and the additional money he is providing in his bill.
However, like many, I have concerns about EPA's proposed changes to the TMDL program. I have expressed my concerns about those proposed changes and the process used by EPA to make these changes at hearings, in letters, and in phone calls to EPA Administrator Browner, to Mr. Fox, and the Director of OMB, Jacob Lew, and in my public statements. I am green and proud of it, but I am concerned.
I have not been alone in expressing my concerns. Many members of Congress, the National Governors' Association and individual governors, the Association of State and Interstate Water Pollution Control Administrators and individual State agencies, EarthJustice Legal Defense Fund, Friends of the Earth, the conservation Law Foundation—the list goes on and on. They have all expressed deep concern.
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Most of these organizations, including the National Governors' Association, the State Water Pollution Control Administrators, EarthJustice Legal Defense Fund, Friends of the Earth, and the Conservation Law Foundation, believe that EPA's new TMDL regulations will actually hinder progress in improving water quality and will slow down implementation of the TMDL program. Those are two objectives that we don't want to see advanced.
These organizations have different reasons for holding this view and different views on how to improve the TMDL program. However, they all share the common goal of improving the TMDL program so that it is a more effective tool for improving water quality. People who share a common goal can come together to work out the right policy to achieve that goal.
But unfortunately, EPA has not demonstrated leadership on this issue. EPA has made no attempt to engage in the public discourse that must take place to unite stakeholders behind the common goal of improving water quality.
I have more to say, Madame Chairwoman, and I would ask unanimous consent that my entire statement be put in the record.
Thank you for your indulgence.
Mrs. FOWLER. Thank you, Mr. Boehlert. Your entire statement will be submitted for the record.
Mr. Dickey, we have a vote on. If it suits you, I think we will recess just for the vote and then come right back. I think we would only get part way into your statement and then we would have to go vote. I would like for us to hear it in its entirety.
We will recess for the vote and then come right back. Thank you.
[Recess.]
Mrs. FOWLER. This hearing will come back to order.
I don't believe there are any further members here at this time to give opening statements, so I would now like to officially today's first panel.
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We are fortunate to have with us a Member of Congress who has been working on this issue for a long time. He is the Hon. Jay Dickey from Arkansas.
While there are many Members of Congress who represent the concerns of their constituency, few do it with the passion and perseverance of Representative Dickey. We have served together since 1992 and I have seen firsthand the good work he does on behalf of his district.
We welcome you to the subcommittee.
Mr. Dickey, before we proceed with your testimony, it is the standard procedure in this committee to swear in all of our witnesses, so please stand and raise your right hand.
[Witness sworn.]
Mrs. FOWLER. Please summarize your testimony in about 5 minutes. Without objection, your full written statement will be submitted for the record.
TESTIMONY OF HON. JAY DICKEY, A REPRESENTATIVE IN CONGRESS FROM ARKANSAS
Mr. DICKEY. Thank you very much, Madame Chairwoman, and thank you for your courtesies.
Gentlemen of the panel, I also thank you for your attendance and your attention.
My inspiration came from what started in El Dorado, Arkansas in January or February of this year where a State Senator friend of mine named Jodie Mahoney and part of the timber industry said that they were having an uprising in the southern part of the district and they wanted me to come down.
From talking to those 1,000 people, I then went to Texarkana where there was such an influx of people they got up and said that we had to delay the meeting 30 minutes so all the pick-up trucks could get in. There were over 3,000 people, and some say 4,500.
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I went from there to West Monroe, Louisiana where I also spoke. And then to Federal, Arkansas for a total of modestly 9,100 people.
I mention that because it shows that there is a groundswell of people who are concerned about this. It is not a timber industry, it is not a livestock industry, it is not a poultry issue, it is a property rights issue. These people have felt threatened. They also feel somewhat betrayed because they have spent all this time working with best management practices in their industry and they have even been getting awards. Then all of a sudden in a hastily drafted—it is now without question hastily drafted—rule, their livelihood and their own efforts at water quality were just dashed against the rocks.
At each one of these meetings, by the way, we had the EPA come in as well as the Sierra Club. Everybody was there. I noticed the response from the crowd, because that was very important to me. They politely booed EPA from time to time and the Sierra Club they didn't politely boo, they just booed. This was the son of a law professor of mine and I went up to him and apologized.
But I am just saying to you that there is a great deal of feeling and emotion in this issue because these are people who are bringing their family members. They were there with their children and their wives. They were sitting there and elbowing each other. I could see them in the presentations.
I decided to file a bill, H.R. 3625. This is a bill that hasn't been before a committee, but the reason I say it is because it forced me to talk one-on-one with Members of Congress. I went around to everybody that would even look at me or say hello. I told them what was happening at home, and some didn't know anything about it at all. I supplied materials, I talked to staff, my staff talked to staffmembers, and lo and behold this bill—which is a drastic measure when you look at it from the EPA's standpoint—which just totally exempt livestock, poultry, and timber period from the Clean Water Act. But this got 197 cosponsors. Of that, 32 cosponsors were Democrats.
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I say that because I have been on the front lines. I have been one-on-one in this thing working at it and I have heard the people's objections. I have tried to solve some of them and I have tried not to solve some of them. I think if I would start with that again right now, I might get 397, for one reason. And that is what happened on July 11th.
This hastily drawn rule, which was then proposed to be changed and then rechanged again, all of a sudden when we got through the appropriations process and we finished with the limitation rider and the Senate put it on their side, here comes on July 11th the EPA coming back in in a hurried fashion without preparation. They came in and said, ''We are going to get this ahead. We are going to run and slip this right under the deadline for the signing of this bill.''
So we now have a rule that looks a lot like it is reasonable, but it is not because the States can still activate everything. It can still start from the bottom up and come up. Then you have the court decisions you are dealing with.
So they have ignored completely what the Congress has decided to do. I can tell you there is a more decided commitment on Congress' part than even what these riders have because I have talked to the people and I know the people who are on the fringes that are sitting and waiting. Of the 197, Sherry Boehlert was not in that list.
You heard what he said here. He was definite, precise. He talked about groups that were against this.
All we really want to do as citizens in America is to sit down at the table and be a part of this process. But these people who think they are God's gift to America say, ''No, we are not going to soil our hands with conversations with you all. We know better about what is going on than you know and we are smarter than you.'' I don't think we can exist in any type of effort—any type of legislative effort or Clean Water effort or Clean Air and whatever—if we have someone who is that arrogant and that apart from the rest.
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We have a bill that is now presented to Congress that will ask for a study. Charlie Stenholm and I are introducing it along with Sherry Boehlert and a bunch of others. It asks for a study during this period of time from now to October 1, 2001 so that the EPA will go out and do exactly that, talk to the States and let us come in and talk about what it is like to really be on the ground floor at the ground level with this issue. Who else cares more about clean water than the people who live there?
I just know that they haven't gone into our woods, they haven't fished our lakes, they haven't hunted our woodlands. That hasn't happened. Again, they are sitting up here in some kind of hurry. I have asked Administrator Browner if it is a political agenda that we are serving because it just doesn't look like their usual work. They are a little better than this. But we are also asking for their science.
Now, if they object to this, then we are going to find out why they object. But all we want to do is get to the table, sit down, and say, ''Here is what industry says about this and here is where we can help.'' There is nothing wrong with that. We did it with OSHA. When Joe Deale was the chairman of OSHA, we had people come in and we talked about it and there is nothing wrong with it.
I feel very strongly about this. I am passionate about it. But I still say we have to get to where we are talking to each other. That is what I hope this committee will consider and do whatever it can to try to bring the parties together.
Thank you so much for your time.
Mrs. FOWLER. Thank you, Mr. Dickey. I appreciate your testimony.
I do not have any questions for Mr. Dickey.
Mr. Borski, do you have any?
Mr. BORSKI. No, Madame Chairwoman.
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Mrs. FOWLER. Thank you.
Mr. Terry, do you have any questions for Mr. Dickey?
Mr. TERRY. No questions, but just to say, coming from Nebraska, we share the same concerns. I have heard the same fear from my constituents. I have mostly urban area, but still there is enough agriculture in the district, so I understand what you have been told and what you are going through, Jay. Thank you for your efforts.
Mr. DICKEY. Thank you, Lee.
Mrs. FOWLER. We want to thank you, then, for your testimony, Mr. Dickey, and for all the work you are putting into this. If there are no further questions, then we will move on to our next panel. Thank you very much.
We had unanimous consent earlier in the hearing for you to join the panel.
Mr. DICKEY. Thank you.
Mrs. FOWLER. Thank you again for your testimony.
I will now call the next panel. We have joining us today two representatives from the Administration who have been intimately involved with the evolution of this rule. First we have J. Charles Fox, Assistant Administrator, Office of Water, EPA. Mr. Fox, we thank you for coming on such short notice. Since we are going out tonight, things got speeded up a little bit.
Second, we have Hon. James Lyons, Under Secretary, Natural Resources, United States Department of Agriculture. I want to thank you also, Mr. Lyons, for taking the time to participate in this hearing.
As I stated earlier, before we proceed with your testimony, we will swear you in as we do all witnesses before this subcommittee.
Please stand and raise your right hands.
[Witnesses sworn.]
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Mrs. FOWLER. Thank you. Please be seated.
We ask that you summarize your testimony in 5 minutes and without objection, your full written statement will be included in the record.
Mr. Fox, you may begin.
TESTIMONY OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.; AND JAMES LYONS, UNDER SECRETARY, NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.
Mr. FOX. Thank you, Madame Chairwoman.
I really appreciate this opportunity to be here today and I would like to start with a special thanks to Mr. Borski and Mr. Oberstar, who have been just tremendous leaders on behalf of clean water for this country.
My statement will be brief, as I expect that a number of members of this committee have quite a few questions. I have testified on this subject a number of times and my previous statements provide a good deal of information about the program.
Today, I would like to make three brief points. First, I think it is important to understand why we are even talking about this program.
Our Nation can be very proud of the progress we have made in the last decade in improving water quality for fishing, swimming, and drinking. But it is also true that we still have a long way to go in achieving our goals for clean water.
The most recent analysis submitted by the States suggests that up to 40 percent of the waters they assess still do not meet our goals for fishing, swimming, and drinking. These problems are the result of many factors, including inadequate pollution control from factories and sewage treatment plants and polluted runoff from agricultural, urban, and suburban lands.
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The TMDL program is one of the most effective tools for solving the remaining water pollution problems in this country. In simple terms, a TMDL is a pollution budget. It is a numerical, quantitative expression of how much pollution needs to be controlled to achieve water quality standards. These standards, I would add, are established by the States themselves.
This approach of establishing targets is precisely what led to the success in the Great Lakes and in the Chesapeake Bay. It is a model that is now being used throughout the country. It allows communities and States to make their own decision about the best way to solve water pollution problems on a watershed basis.
Second, I think it is important to understand the context of the new TMDL rules. Many people seem to believe that this is something new, created by this Administration. This is simply untrue. TMDL requirements were included in the original 1972 Clean Water Act and it was the Reagan Administration that established the first comprehensive TMDL regulations. The new rule signed by the Administrator this month built upon the TMDL framework that has existed for some time. In fact, all 50 States have TMDL programs up and running and EPA has already approved TMDL schedules in all 50 States based on the existing set of requirements.
Third, I think it is important to talk briefly about the process we used to develop this program. Many people have suggested that rushed to judgment and forced this rule through the process using unethical or perhaps illegal techniques. This is also simply untrue. We worked for 4 years developing this program and we extensively engaged all interests in the process. We not only listened to what people had to say, but we responded accordingly.
I would be happy to describe in great detail some of the changes we made to the program in response to the comments we received. All meetings that occurred with interested parties after the public comment closed are included in the docket for the rulemaking. I would also be happy to summarize the meetings that took place in great detail.
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Some Members have suggested that we need to embark upon yet even more process. We have serious reservations about some of the proposals I have heard, but I would be happy to talk more about this issue if that is an interest of the subcommittee.
Finally, I would like to say that there has been a good deal of misinformation about the TMDL program. For example, I continue to read that many people mistakenly believe that it includes new permitting requirements for nonpoint sources of pollution. It doesn't, and it never did. The Clean Water Act is clear that as a matter of Federal law, EPA does not have the authority to issue permits to nonpoint sources of pollution. Our initial proposal did include new provisions to address point sources of pollution coming from forestry operations and factory farms, but we removed those requirements in response to the comments we received from the public.
As you know, Congress included a rider on the Supplemental Military Construction Appropriations Bill, which prevents EPA from implementing the new rule. Obviously, we will comply with the law. However, the law will delay clean water progress throughout the country and it creates unnecessary confusion for the TMDL program. We respectfully request that Congress reconsider its action and remove the prohibition for implementing the new TMDL program.
Thank you very much.
Mrs. FOWLER. Thank you, Mr. Fox.
Mr. Lyons, I am going to receive you next—not that I don't want to hear you—but I have a 3:00 commitment so I am going to turn over the gavel to the vice chairman of this committee, Mr. Terry.
If you would proceed with you testimony, thank you very much.
Mr. LYONS. Thank you very much, Madame Chairwoman.
I appreciate the opportunity to appear before the subcommittee and join my colleague, Chuck Fox, to discuss EPA's rule on TMDLs.
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USDA shares this Nation's commitment to cleaning the waters of the United States and building on our successful efforts to reduce water pollution over the past several decades. As all of you know, much of that success has been associated with efforts to deal with point sources of pollution. The tougher battle that remains is to address nonpoint sources of pollution, such as soil erosion, urban runoff, and pollutants from animal feeding operations and other sources, sources that don't come from the end of a pipe. Addressing these challenges is much of the focus of USDA's work in the conservation arena today.
To accomplish these next steps in cleaning our waters will take a concerted effort from farmers, ranchers, and forest landowners, as well as urban and suburban residents. Much has been achieved in this regard using many of the conservation tools that the Congress has authorized through the 1985, 1990, and 1996 Farm Bills.
For example, the Conservation Reserve Program has been an extremely effective tool in reducing erosion on highly erodible lands. Continuous sign-up of buffer practices under CRP has become an important part of our whole water quality protection.
The Wetlands Reserve Program and the Environmental Quality Incentives Program have benefitted thousands of farmers and ranchers and helped them to improve the environment by reducing soil erosion and runoff into streams and rivers and has compensated landowners for their participation in those programs.
The Conservation Reserve Enhancement Program is playing an important role in protecting the waters of the Chesapeake Bay, salmon habitat in Oregon and Washington, and drinking water supplies for New York City. We are very proud at USDA of agriculture's and forestry's contributions to the Nation's efforts to clean our waters, while recognizing that we can and should do more.
When I testified before the Subcommittee on Water Resources and the Environment last February, I expressed USDA's continuing commitment to serve America's agricultural and forestry communities, as well as continue to encourage efforts to make progress in addressing remaining nonpoint source pollution concerns. An interagency working group was formed to resolve many of the significant policy differences that existed between USDA and EPA with regard to the rules initially proposed. We are confident that we succeeded in making major improvements in the rule that addressed our concerns. We are also confident we kept our agricultural constituents informed of the progress we were making right up through the signing of the rule.
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I would like to briefly address some of the improvements that were made as the rulemaking process proceeded.
As you know, the final rule does not include any new permitting requirements for forestry, concentrated animal feeding operations, or aquaculture operations. As already indicated by Congressman Dickey, there was significant concerns on the part of the constituencies represented by forestry, CAFOs, and aquaculture about their inclusion in the proposed rule. As a result, they are no longer a part of the final rule.
The new rule grants States more flexibility in setting priorities, more time to develop lists of impaired waters, and simplifies listing requirements, dropping a requirement that threatened waters be listed. States will have up to 15 years to develop TMDLs for their impaired waters. Most importantly from the standpoint of agriculture, EPA and USDA agree that voluntary and incentive-based approaches, such as the water quality improvements that farmers make through the use of the conservation programs I have already mentioned, will be given due credit in the development of TMDLs. The final rule reflects this agreement and is amplified in the preamble to the rule.
However, no matter how the TMDL program is designed, it will not be successfully implemented without adequate funding. I want to emphasize that the President's fiscal year 2001 budget request included significant increases in key programs that would help farmers, ranchers, and foresters address TMDLs in a voluntary, incentive-based fashion. The EQIP program, for example, would have been increased from $200 million to $325 million. The CRP would have been expanded to 40 million acres. Under our current authority, USDA is increasing CRP continuous sign-up incentives by $100 million in fiscal year 2000 and $125 million in each of fiscal years 2001 and 2002.
The Wetlands Reserve Program, which will reach its statutory 975,000 acre limit in fiscal year 2001, would enroll 250,000 acres annually. Finally, under the President's proposed budget, a new $600 million Conservation Security Program would be funded and would provide annual payments to farmers and ranchers who voluntarily—let me emphasize again, voluntarily—implement various conservation practices, many of which will benefit water quality.
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Unfortunately, this Congress has chosen not to fund these programs, in fact, severely underfunded many of the important programs you have already authorized. For example, the fiscal year 2001 budget proposals moving through Congress now would actually place a cap on funding the EQIP program at $174 million, $151 million less than the President's budget and $26 million below its authorized level. A similar response was realized with regard to the other proposal we put forward to address water quality concerns.
USDA strongly believes that outreach, education, and technical assistance to communities will play decisive roles in our efforts to address clean water concerns. EPA has committed, through this rule, to continue to follow the course of voluntary, incentive-based approaches to dealing with water quality concerns, whether they affect agriculture, animal feeding operations, or forestry. It is the only way to get the job done, gentlemen. But if we do not fund those programs, then we offer agricultural producers and our forest landowners no hope to address the remaining nonpoint source pollution concerns this Nation clearly wants us to address.
I appreciate the opportunity to appear before you today. USDA has gotten a lot of attention for its role in working with EPA in addressing the TMDL issue. I personally have gotten a lot of attention for addressing this issue.
I want to emphasize one fact that I think no one could ignore—certainly this Congress has demonstrated that. When there is strong disagreement about issues, the only way to resolve them ultimately is to sit down in a room, face to face, and talk them through. When it was clear that USDA had issues with the EPA proposed rule, we initiated a process to do that. Chuck and I have spent many hours together trying to work our differences out. I think this rule reflects—at least in a substantive manner—recognition of the differences that exist and resolution of many, if not all, the issues that existed between the Department of Agriculture and EPA.
We are pleased with the substantive progress we have made. We believe we are making steps forward. But I would emphasize again that without funding these critical, voluntary, incentive-based programs, we will make very little progress in addressing remaining nonpoint source pollution concerns.
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I again appreciate the opportunity to appear before the subcommittee today and certainly look forward to addressing any questions the members may have.
Mr. TERRY [ASSUMING CHAIR]. Thank you, Mr. Lyons.
Mr. Fox, I want to follow up on a couple of your statements that were pleasing and somewhat confusing, at least from the information I have received from the agriculture folks in Nebraska who have been parading through my office over the last 2 or 3 weeks, coming here not on trade with China but on this issue.
In your statement where you are discussing some of the misperceptions about the rule and its applications, a lot of those were directed at the folks who have come in and basically you are trying to reassure us that their fears are unfounded. I am not too sure they are, so I want to explore that a little bit more.
Some of the statements they have made and the basis of their concern is that this rule gives eventually the EPA the power—untethered power, they fear—to implement, in essence, a CRP, that if they have any drainage swales that eventually end up in the creek that will be tested that there will be mandated land set asides with grass to make sure that as the water runs across there it is washed and cleansed that way.
You are saying that with the new, enhanced rule that farm ag is eliminated. Could you clarify that statement? Then follow up on the other part of their fear, that they are specifically eliminated on the rule from the EPA but not on what the EPA is going to mandate the States do to them or, on the contrary, if the State of Nebraska Department of Environment Quality says that is unnecessary, then that gives the green light to the EPA to come in and, in essence, take over those powers, and start inflicting land asides and reduction of production from our farmers.
Mr. FOX. I have also listened to a lot of the parades the past many months on this. I can tell you that many of the comments I hear simply are not true, but I do appreciate the opportunity to explain this.
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There are no permitting requirements in this rule, one of the common misconceptions. There is nothing in this rule that gives EPA the authority to tell farmers to set aside any land. There is nothing in this rule that gives EPA the authority to issue permits to any drainage ditches.
What is in this rule—and I think the apprehension, that you are sensing from many in the different communities—this rule is serious about solving remaining water pollution problems in this country over the course of the next 15 years, and longer in some cases. The way the rule is structured, we give the flexibility to the States to make their own decisions about how to solve these problems. EPA has no authority to mandate what the States do with respect to how they approach agriculture.
My expectation is that most States will in fact continue to implement voluntary programs that have in fact proved very successful. In many cases, these programs might have to be enhanced. The State might want to set up a Conservation Reserve Enhancement Program. That is a very effective way of solving this problem. But EPA is not going to be in a position to mandate any specific practice that the State must undertake.
Our job will be to review the totality of the program the State presents to us and make a judgment as to whether or not it is sufficient to achieve water quality goals. If it is not, then we will offer the State some recommendations on how they could do that. But again, in no case would we be able to mandate that they actually take some of the actions you suggested.
Mr. TERRY. Let me follow up, then, on that aspect.
There will be no specific mandate. But in essence, aren't there only a couple of options available to the States and to our agriculture community on what they can do? So if you are sitting there mandating the end of what can run off, and then say that everything is left to you, isn't the only alternative—Mr. Lyons, you may have to answer part of this as well—is reduction of use of chemicals—which is absolutely what the EPA is driving our farmers to do, go organic nationally—
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Mr. FOX. I might—
Mr. TERRY.—land set asides or reduce the volume of chemicals they need to produce.
Mr. FOX. Mr. Lyons has a lot of experience with this, but I will offer you some of my observations. There are many, many tools available to farmers to solve these problems. We have talked about buffer strips. Installing a grass waterway or a forest buffer strip along a stream is a very effective tool. You can install nutrient management plans so you keep track of how much manure or chemical fertilizer you are applying to the land.
You can look at tools of controlling the manure coming directly out of the animals such that you actually store it in places, for example, that do not have exposure to the rain or to the streams. You can fence your streams to keep the animals out of the water in the first place.
There is any one of a number of what we call best management practices that have proven their effectiveness over the last 50 years in solving some of these water pollution problems.
Mr. LYONS. Mr. Chairman, I want to emphasize that there are a lot of misperceptions about what the rule does and doesn't do. I think we have a big job explaining what this rule would do substantively in terms of agriculture.
One thing I want to emphasize this rule does not—and of course, cannot—change the Clean Water Act. It doesn't change the law. By law, agriculture remains exempt from the permitting systems that apply to other industries. Agricultural return flows and irrigation runoff are exempt from permitting requirements under the Clean Water Act.
What the rule does do is certainly send a message about the importance of developing strategies to deal with nonpoint source pollution, providing the States 15 years to develop TMDL strategies and then additional time to actually develop implementation strategies, which have to be practicable, which have to take into consideration economic as well as feasibility concerns.
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There are certainly a lot of tools in our tool kit to help producers address water quality concerns. Interestingly and ironically, other issues and requirements are generating renewed interest in State-initiated efforts to deal with water quality concerns, whether it is groundwater contamination from nutrient runoff or from pesticide use—which unfortunately is appearing in Nebraska, Iowa, and other places in the Midwest—or it is issues associated with salmon habitat restoration in the Pacific Northwest. Recently, four western governors announced a strategy to deal with restoration efforts—two Democratic and two Republican, I would emphasize. Part of the key there is addressing habitat issues through water quality strategies, including the use of buffer strips, et cetera.
This rule does not require those things to be put in place. But we have the tools to help landowners address these issues as concerns arise.
I think it is important to communicate a message to agriculture and forestry that we need to continue the progress we are making in addressing water quality concerns, whether it is related to agricultural production or forestry activities.
Mr. TERRY. Thank you.
Mr. Borski?
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. Fox, it was mentioned earlier that a number of environmental groups had concerns with the TMDL Rule. I seem to recall staff receiving a letter mentioning a number of environmental groups that supported it.
Could you comment on that for me, please?
Mr. FOX. Yes, and I will give you my best understanding. Obviously, this has to be directed to the environmental groups themselves. It is my understanding, as Mr. Boehlert mentioned, that there are two or three organizations that basically feel that this rule isn't aggressive enough. But I think it is fair to say that most of the Washington national environmental organizations that I am aware of do support this rule. I am aware of letters that we have received basically to that effect from groups like the National Wildlife Federation, the Natural Resources Defense Council, the Sierra Club, and the U.S. Public Interest Research Group, just to name a few.
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Mr. BORSKI. Thank you very much.
We have also heard today—and I think before—that this is a hastily crafted rule. Would you care to comment on that?
Mr. FOX. Yes. I appreciate that many times issues don't get to the attention of this body until they get to a certain point in their process, but you can trust that we have been working on this for a good deal of time and we have tried to do this in the most open and fair way we know is possible. We started approximately 4 years ago by convening a Federal advisory committee that included diverse representation from agriculture, industry, States. They met for the better part of a year, a year and a half. They developed over 100 consensus recommendations that formed the basis for our rulemaking.
We took their recommendations, spent a good deal of time then developing the actual proposal. Then throughout the proposal and comment period, we received a whole lot of other comments from other organizations as well.
If you bear with me for just a minute, there has been concern that we somehow inappropriately meeting with some groups and not with others. That has come up at a number of hearings. I would like to just summarize for the record some of the meetings that we actually did have.
When the public comment period closed, we kept a very rigorous docket of all meetings or phone calls that did take place since the close of the public comment period. This docket includes 32 States in 45 meetings or phone calls, Members of Congress—which are all part of the docket as well, including a number of meetings I have had with some of you on the panel—52 individuals or groups contacted in 68 meetings or phone calls, 34 agricultural groups contacted in 25 meetings or phone calls, 22 environmental groups contacted in 39 meetings or phone calls, 58 industry groups contacted in 15 meetings or phone calls.
We really did our best to listen, to reach out, and frankly the rule reflects the comments that we received from many of these organizations.
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Mr. BORSKI. My friend, Congressman Dickey, also mentioned in his earlier remarks that different groups wanted to be part of this process. My understanding of the TMDL Rule is that it is not you in Washington who are directing this, but the States and the local governments working with the local groups. Is that not so?
Mr. FOX. That's right. And as the Chair mentioned at the beginning, I have come with great respect to understand that Mr. Dickey can get quite passionate on behalf of his constituents. I do respect him greatly for that.
But it is true. This program will work best when it is run by the communities and the States. That has been our goal all along.
Mr. BORSKI. I appreciate Mr. Dickey's passion, too. He has talked to me several times, too—I may mention for the record as well—in talking about this.
Would it be possible to achieve water quality if this bill were enacted?
Mr. FOX. I will tell you this—and obviously I am going to give great deference to this committee, in particular, because you have spent so much time on clean water—but I can tell you environmentally the single biggest remaining problems we face in this country are related to polluted runoff from agricultural, forestry, and urban and suburban land uses. We have done generally a pretty good job controlling pollution from the point sources, the discharge pipes from factories. We just need to do a much better job in the future at controlling pollution from these sources.
Mr. BORSKI. Thank you very much.
Mr. Chairman, if I may, I did find the letter I referred to earlier and I would like to have this made a part of the record, if I may.
Mr. TERRY. Without objection, the referenced letter will appear in the record.
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Mr. Dickey?
Mr. DICKEY. Mr. Fox, have you had a chance to study the bill that Charlie Stenholm and I have filed?
Mr. FOX. I am aware of it.
Mr. DICKEY. It is asking for studies.
Is there any problem between now and October 1, 2001 with those studies that we are requesting?
Mr. FOX. My understanding is that the bill does more than request studies. It actually suggests that we need to go through another comment period on the final rule. Is that correct?
Mr. DICKEY. Yes.
Mr. FOX. I would just say this—and obviously, I am happy to talk more with you. I have really tried to keep any open door about this. But we have been having meetings and going through public comment periods for the better part of 4 years on this. I truly believe we have listened. If we go through a process right now of opening up the public comment period yet again, there is no question in my mind that this will delay clean water for millions of Americans.
Mr. DICKEY. How can it do it if it has a deadline of 9 months and we can't go past October 1st anyway with any of these things? How can that delay? It seems to me like it would be hurrying it up because we have the solutions that can help and you have the impetus that we need. How can meetings cause us—plus, we have the date of October 1 as a friend of getting things done.
Why wouldn't the studies be helpful?
Mr. FOX. As a practical matter, my understanding of your proposal suggests that there are studies and public comment periods that go on until approximately the effective date of the rule. We would have to at that point, of course, analyze those public comments, respond to them, and obviously if they required any additional rulemaking that is going to extend the time period. I can guarantee that is going to be at least a year. If you are doing rulemaking, as a practical matter, it is going to be closer to 2 years or maybe more.
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Mr. DICKEY. If we provided in the bill and it is not already provided that you have 90 days until October 1 to do it, is that enough time for you to come up with a proposed rule that might be more of a consensus rule?
Mr. FOX. I will just tell you personally how I believe about this. I don't know what it is you would like us to study. If there are specific issues you have questions about, we can do that. But I can tell you in general, having been through this for a number of years, consensus on this one is going to be very difficult to achieve. I don't think 90 days is going to let me find consensus in this.
Mr. DICKEY. We have 6 months and then the 90 days. It might be—I can't quite figure the number. Yes, the number of months are in there, but I can't recall right now.
What I am saying is that you closed out the public comment period last time when you had something like 30,000 comments. You just said that you were not going to do it any more. I asked you or Administrator Browner at the hearing if we could have some more time and you all said no.
I know you haven't talked to any of our folks. The people I have been talking to haven't said that they have spent a lot of time with Chuck Fox. I have asked you twice to meet with our delegation. I have asked Administrator Carol Browner to come meet with us and it has been denied.
What is the harm in listening to people who are at the ground level, who really have the job of being the caretakers of the forests, of the lands, and of the waters?
Mr. FOX. Obviously, there is no problem in listening to people. I have done a lot of that over the course of this. Mr. Dickey, I apologize for having to do this in this forum, but I have very much tried to reach out to your office. We need to talk some more if you feel somehow we haven't been responsive to your office. I really have tried to listen.
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Mr. DICKEY. Do you know I have asked for a meeting with the full delegation?
Mr. FOX. Again, I don't want to get petty here, but I have called your office a few times trying to set up meetings and don't get calls returned.
Mr. DICKEY. Then, can we do it now?
Mr. FOX. I would be happy to sit down with you and talk more about this at any time.
Mr. DICKEY. Can you commit Administrator Browner to that?
Mr. FOX. I cannot commit the Administrator right now to a schedule.
Mr. DICKEY. We are back to where we were before.
Mr. FOX. Sir, to me the question is, What is it that you think needs more study? If you would like us to follow up on some of those questions that you think are still unanswered, I would be happy to do that.
Mr. DICKEY. We would just like to meet, sit down so that you all can hear the concerns of the people. When I asked Administrator Browner if she cares about what the people at the ground level feel and how they feel about this, she said, ''I know they care about clean water.'' I said, ''But do you care about what they are concerned about?'' She looked at me as if she wasn't sure what they were concerned about.
If we could just get that done, it would do a whole lot of good as far as getting this problem solved.
Mr. FOX. I would be happy to meet with you at any time and I would be happy to arrange this with the Administrator.
Mr. DICKEY. Could I ask one more question?
Mr. TERRY. Your time is up, but we do plan on doing a second round.
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Do you mind if I start with Jay on the second round?
Go ahead, Jay.
Mr. DICKEY. You talked about the hastily drafted rule accusation that I made. When the examination came the last time and you all said you were going to have to change it because you realized that the proposed rule passed in 1999 you all said that it wasn't clear. People were misunderstanding what you wanted to do, so you were going to have to revise it.
That was at the hearing before we had this series of hearings, then we had the amendment that was put in at the subcommittee level, at the committee level, and at the House level. You said then that you had to change it.
Now you have come up and done something altogether different, you changed the whole thing on July 11th and slipped this right under the wire.
Are you really able to tell me, Mr. Fox, that you haven't been hurrying this thing with first the rule that came out that you admit was confusing? I say it was confusing because it was hurried. Then the second rule, which is apart from the first and changes it dramatically is slipped under the wire on July 11th.
Are you telling me that it wasn't hastily drawn?
Mr. FOX. I am telling you under oath that it was not hastily drawn, sir. This was something that was a very thoughtful process. All of the changes that we made to the rule go through what we call the Administrative Procedures Act. We consider every single change we make as to whether or not this was something the commenters would have had a fair opportunity to have understood that this was an outcome. On every single change we made that determination.
The only speeding up in this process that occurred was in the last couple of weeks. When you all made the decision to add this rider to the Appropriations Bill, we were already at the Office of Management and Budget in the final throes of closing on this rulemaking. That process we accelerated by probably about 2 weeks.
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Mr. DICKEY. Okay.
Thank you, Mr. Chairman.
Mr. TERRY. Mr. Borski?
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. Fox, what is the usual comment period for a rulemaking?
Mr. FOX. It is 30 to 60 days.
Mr. BORSKI. How long was the comment period for this one?
Mr. FOX. It was 150 days.
Mr. BORSKI. So a little more than—
Mr. FOX. Yes. And I would like to say, too, on the comments, it is true that we received about 34,000 comments, of which about half of those were post cards, the same post card from a certain interest.
Mr. BORSKI. I seem to recall back in February that you indicated to the Water Resources Subcommittee that the rule would be final by June 30th.
Mr. FOX. That is correct. I actually was slipping a little bit and we ended up finalizing it after that date.
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. TERRY. I am not going to ask you any question on the speed or the process of the rulemaking.
Mr. FOX. Or copper?
Mr. TERRY. Copper or water temperature of the Platte River or anything else in our history, Mr. Fox.
But I am curious, if you will help educate me and maybe create a better record for us here.
When this rule was implemented, there was a statement made that 40 percent of U.S. waters do not meet water quality standards. I am wondering what was EPA's standard to estimate how you come up with the 40 percent. Describe your cost benefit analysis when you use that 40 percent of U.S. waters. Does that mean 40 percent of the U.S. waters are actually impaired? If you could take that, then, and extrapolate on a comment you made earlier on the point sources. Are these 40 percent mostly dominated by urban factory point sources? Or how much of the 40 percent is a result of agriculture runoff?
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Mr. FOX. The 40 percent figure comes from what we call the 305(b) reports we receive from the States. Section 305(b) of the Clean Water Act requires the States to submit to EPA every 2 years an assessment of their water quality. We roll up each State's submission into a national picture. That is where that 40 percent figure comes from.
Technically, the way the sentence works is that it is 40 percent of the waters assessed by the States that do not meet their goals for fishing and swimming. The ''assessed by the States'' is an important caveat because obviously the States don't assess all of their waters.
You should know the 40 percent is a summary. When you look at the rivers segment versus lakes segment versus estuaries, they are all a little bit different, but it all rounds out to about 40 percent.
We can certainly submit to the committee the most recent 305(b) report, which we just released about a month ago.
Mr. TERRY. Then on the cost benefit, is the cost based upon the 40 percent of the impaired?
Mr. FOX. I am not sure which cost benefit you are referring to. The assessment we do doesn't get into costs. It is really just an environmental assessment of water quality impairments around the country.
Mr. TERRY. The cost estimate of the rule itself?
Mr. FOX. Right. In the cost estimate of the rule itself, we looked at what would be the incremental costs associated with this rule to the States, in particular, because they are the ones that have to implement it. Our estimate was I think approximately $28 million as the incremental cost of this rule. That basically goes to developing TMDLs that are consistent with this rule as opposed to consistent with existing rule.
Mr. TERRY. What percentage, then, of the waters are being cleaned up as a result of this rule? Is it attacking the entire 40 percent?
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Mr. FOX. Well, over time it is certainly our hope that under all Clean Water Act programs we will achieve the goal of the 1972 Act, which is that waters in this country are safe for fishing and swimming. I think the answer to your question is yes, over the course of basically the next generation, we are hoping that water quality goals will be met throughout the country.
Obviously, the States are going to have a role here in deciding what is the right goal for their water. Not all waters will meet the high standard of fishing or swimming or trout fishing, and the States will be in a position to make their own decision about what the goal should be.
Mr. TERRY. In my last minute of this hearing, how much of the 40 percent can be cleaned up by controlling agriculture runoff?
Mr. FOX. I don't know the answer to that question. I can tell you that of the impaired waters that are listed on another list—there are 20,000 impaired waters under the TMDL program—about half of them are impaired by nonpoint sources and point sources together. Only 10 percent of the waters are impaired by only point sources. The rest are a blend or by nonpoint sources.
I can give you all this information in great detail for the record.
Mr. TERRY. We would appreciate it if you would submit that, then, for the record.
Since there are no other panels, I would like to thank all the witnesses for their time and testimony here today. The subcommittee will be asking follow-up questions, including questions provided by other members of the committee.
The issue is of extreme interest to this committee and both this subcommittee and the Water Resources Subcommittee. We will be watching further developments very closely.
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This meeting is adjourned.
[Whereupon, at 3:30 p.m., the subcommittee was adjourned.]
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