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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
Thursday, February 10, 2000
House of Representatives, Subcommittee on Water Resources and Environment Committee on Transportation and Infrastructure, Washington, D.C.
The Subcommittee met, pursuant to call, at 10:25 a.m., in Room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert [Chairman of the Subcommittee] presiding.
Mr. BOEHLERT. The Subcommittee meets today to hear testimony from federal, state, and local officials on a critical environmental issue. What approach should we take to complete the job of cleaning up our nation's waters?
No one disputes that the Clean Water Act is an environmental success story. Over the past 30 years we have made significant progress. The number of people served by secondary treatment has increased from 85 million in 1972 to more than 180 million today. The total pollutant discharges from wastewater facilities has decreased by 40 percent in the past 20 years, although the population has increased by 30 percent.
There also is no dispute that much more needs to be done. Based on the 1996 water quality inventory, approximately 40 percent of the rivers, lakes, and estuaries that have been assessed by states do not meet water quality standards.
For the Great Lakes, the percent of impaired waters goes up to 97 percent. For our ocean shoreline, that percent goes down to 13 percent. The goal of the Clean Water Act is to bring that percent down to zero. All waters should meet water quality standards.
Achieving our goal of clean water will not be easy. States have identified many hard-to-control sources as leading causes of water quality impairment, such as siltation, nutrients, atmospheric deposition, and urban runoff.
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For some waters, discharges from municipal and industrial point sources continue to be a problem, as well, particularly stormwater runoff, combined sewer overflows, and sanitary sewer overflows. The Clean Water Act provides many tools to help us achieve the goal of fishable, swimmable waters.
We have placed controls on discharges of pollutants into our nation's water through the Clean Water Act permit system. We provide funding for wastewater treatment works, although I must say, not nearly enough.
We encourage states to control nonpoint sources of pollution, both by providing grants under Section 319 of the Clean Water Act and by making state coastal nonpoint source programs a condition of federal funding under the Coastal Zone Management Act.
This hearing is about one of the many tools provided by the Clean Water Act, Total Maximum Daily Loads (TMDLs). The concept behind TMDLs should be unassailable. Where technology-based controls alone do not do the job of attaining water quality standards, the TMDL program could provide a way for us to go beyond technology-based command and control standards and focus on environmental results.
To develop a TMDL, first you figure out how much of a pollutant a water body can assimilate without becoming impaired. Then you examine the sources of that pollutant and work with them to distribute pollutant loadings in a way that will bring about overall pollutant reductions, bringing the water body into compliance with water quality standards.
As part of this process there is an opportunity to identify more cost effective ways to control pollutants while meeting the goal of clean water. This can involve pollutant tradings or other innovations like the overall caps on nutrient discharges developed by the Tar-Pimlico Basin Association in North Carolina or the New York City Watershed Agreement, which I was very much involved in.
While I support the concept of TMDLs, I have some reservations about how EPA is proposing to implement this program. I am concerned that the Agency is missing a real opportunity to move toward a performance-based system. It would be a grave mistake if EPA, through the TMDL regulation, discouraged innovation and stakeholder-developed solutions. Those are two things we want to encourage.
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In this regulation, EPA seems to be trying to address our remaining water quality problems by bringing more sources into the Clean Water Act Permit System. I support controls on nonpoint sources of pollution, but that does not mean I think we can treat these sources in the same way as point sources.
We need to combine controls with incentives, technical assistance and funding to help farmers control runoff that impairs water quality. An example of this approach is the conservation title of the 1996 Farm Bill, which I authored. So while I encourage EPA and others to tackle the nation's remaining water quality challenges, I want to sound a few notes of caution.
First, one section of the Clean Water Act cannot solve all of our remaining water quality problems. Second, achieving water quality improvement is not a paper exercise. We need to go into the field and collect actual data, first, to identify impaired waters and the sources of those impairments, and then to track our progress so we can find out which practices work and which do not.
I am concerned EPA's TMDL proposal will not lead to cooperative or innovative solutions developed by local stakeholders even though these types of solutions have the best chance of improving water quality from hard-to-control sources like nonpoint sources.
So I urge you to carefully consider all the comments and testimony. I hope your final rule will address concerns that have been raised and will encourage people to work together toward achieving our goal of fishable, swimmable waters.
People will frequently say to me, as I am sure they say to you, Mr. Borski, back home, why do you get so excited about the environment? And I say very simply, the American people expect us to protect the air we breathe, the water we drink, the food we eat. That is an awesome responsibility.
And in connection with fulfilling that responsibility, I look forward, Mr. Fox, to working with you and your team, and to work with all the people at the table. You are significant players. We are here to listen. We are here to learn. We are here to share and we will go forward together. With that, I defer to my distinguished colleague from the Commonwealth of Pennsylvania, Mr. Borski.
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Mr. BORSKI. Thank you very much, Mr. Chairman. And let me applaud you for holding this series of hearings on EPA's proposed rules concerning implementation of the Clean Water Act.
For close to 30 years, the Clean Water Act has been successful in cleaning up our nation's streams, lakes, and coastal waters. Gone are the days when it was permissible to discharge raw sewage and waste directly into our nation's waterways.
Now, with effective technology controls and affluent limitations in place, we have witnessed a dramatic turnaround in the quality of our waters. The Clean Water Act has prevented billions of pounds of pollution from contaminating the water and has doubled the number of waterways that are now safe for fishing and swimming.
However, despite this significant progress, our work is far from complete. Today, over 20,000 water bodies across America remain polluted. These waters, which have been identified by states, territories, and tribes, include over 300,000 river and shore miles and five million lake acres.
Estimates have shown that an overwhelming majority of the people in the United States live within ten miles of one of these polluted waters. Yet it is significant to note the percentage of waters impaired solely by direct pollution discharges or point sources is rapidly declining, accounting for only about ten percent of the total number of polluted waters. The remainder are polluted by nonpoint sources, runoff from agricultural sources, city streets, suburban lawns, or a combination of sources.
Mr. Chairman, for years I have been saying that if we want to realize any further dramatic advances in water quality, we must be willing to expand the focus of the Clean Water Act's successes to address nonpoint sources of pollution. That is why I am encouraged by the proposed rules that are the subject of today's hearings.
In the first of their proposed 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 regulatory requirements for establishing Total Maximum Daily Loads, the proposed rules outline a program for states, territories, and tribes to identify all impaired waters regardless of the source of the impairment and to develop local plans to restore water quality.
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Under this proposal, EPA would work with the states, territories, and tribes to develop lists of impaired waters, those waters that do not meet their designated uses as defined by the states. These lists would identify all the impaired waters within a particular jurisdiction, as well as the likely source of the impairment, either point, nonpoint, or a combination of sources, or an unknown source, if that is the case.
The states would then be obligated to develop a comprehensive proposal for reducing the level of pollutants within certain water bodies to ensure that they meet applicable water quality standards within a reasonable period of time. By comprehensively looking at reductions of all sources of pollution on a watershed basis, we can hopefully ensure that thousands of additional river and shore miles have healthy aquatic ecosystems and millions of more lake acres are safer for fishing and swimming.
In addition, the proposed rules provide the public with enhanced opportunities to comment on the TMDL proposals and present their concerns to the states. By getting the public involved early in the process, we can ensure that local users' needs are reflected in the development of clean-up plans.
In a second of the rules, EPA has proposed changes to the National Pollution Discharge Elimination System and the Water Quality Standards Program regulations. These changes have been drafted to ensure that reasonable further progress is made in attaining water quality standards prior to the establishment of a TMDL, as well as assist in TMDL implementations.
As with any effort, to further strengthen environmental protections, 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 want to welcome the witnesses here today and I look forward to hearing their testimony.
Mr. BOEHLERT. Thank you very much, Mr. Borski. Let me now turn to the chair of the Oversight Investigations and Emergency Management Subcommittee, Representative Tillie Fowler, who is also reviewing this issue, particularly the data quality component.
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Ms. FOWLER. Thank you, Mr. Chairman, for giving me the opportunity to address the Subcommittee today. Over the past several months, my Subcommittee, which is the Oversight Subcommittee for Transportation, has focused on the important issue of the accuracy of data used and collected by federal agencies, including the EPA.
At the beginning of our oversight effort, EPA lagged far behind the other agencies in an important area—the timely reporting of its financial statements. But I am happy to report today that through a cooperative effort between the Transportation and Infrastructure Committee and the EPA, it appears as though this year EPA will issue its financial statements on time.
However, the timeliness of data is merely one aspect of data quality. Today, for instance, this Subcommittee is looking at another important factor of data quality—the measurement and collection of field data. Measuring and collecting field data is a very complicated problem. However, we cannot afford to rely on faulty or inadequate data to make listing decisions or to set Total Maximum Daily Load requirements. Reliance upon faulty data may lead them open to legal challenge. The environmental and economic consequences of making decisions based on bad data is too large.
In terms of environmental protection, Floridians are committed to controlling nonpoint source water pollution. And, in particular, Florida has demonstrated its long term commitment, including funding, to implement a comprehensive TMDL program to restore our impaired waters. That program is demonstrated with the success of the Middle Suwannee Basin Working Group, which includes EPA as a member.
We cannot allow bad data to sidetrack or undermine this and our many other excellent programs. Bad data has economic consequences as well. States estimate that developing just one TMDL will cost about half a million dollars. If the data we are using to set the TMDL is bad, then we are just asking our states to throw money down a hole.
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Mr. Chairman, the specific issues that you are addressing today and at your related hearing next week are extremely important. But in terms of data quality, I think they may be simply touching the tip of the iceberg.
In the past, EPA data has been less than adequate. At one point, EPA data indicated there were industrial plants in the middle of the Atlantic Ocean. A sample of EPA data on hazardous waste handlers showed approximately one-third of the records had erroneous information. And just a few months ago, we found out that EPA had been failing to record 88 percent of the nation's drinking water violations.
My Subcommittee, with your help, Mr. Chairman, is going to be taking a close look at data quality at EPA. We are also examining data quality at the Department of Transportation and the General Service Administration. We hope that once again with your assistance, Mr. Chairman, that we will get the same sort of improvement in program data as we have seen in the area of financial data. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much for that very fine statement. Mr. Sandlin.
Mr. SANDLIN. No statement right now, Mr. Chairman. Thank you.
Mr. BOEHLERT. Mr. LoBiondo. Thank you. Mr. Gilchrest.
Mr. GILCHREST. Just very quickly, Mr. Chairman. Thank you. I do look forward to listening to the witnesses today and I appreciate Ms. Fowler's statement about accurate data.
Just very quickly, everybody has water on the table in front of them and not one single person in this room wants to drink water that is excessively infiltrated with high levels of nutrients or toxins.
And so it is charged with the responsibility of the U.S. Congress and this Administration and those of us who consider ourselves responsible adults to do what is within our powers to make sure that the hydrological cycle on this planet, that is in the midst of an infinite hostile environment called the universe, and we have no place to go, that we are charged with the responsibility to make sure the nation's waters are clean for us and future generations.
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Now, that, I think, can be done with the Clean Water Act and a very sophisticated efficient look and evaluation of these TMDLs as EPA goes around with the states to determine water quality in different areas and then to determine what is causing that water quality to be degraded. Whether it is enhancing the nation's wetlands, forests, land use, air deposition, it is all involved in this particular issue.
And two other quick points, Mr. Chairman. One, I have gone to just about every county in my district, up to this point, with EPA MMVE [ph] to explain the program of TMDLs and how it is to be administered and implemented to the local governments from the mayors to the county councils to the county commissioners to the planning and zoning and anybody else that wanted to hear that this is an important issue.
And we will get a long way and to make sure the taxpayer's dollars are expended wisely and something is done to clean up the nation's water if we cooperate. If we try to resist this and don't recognize the need for clean water and land use and human activities is what is causing the degradation of the water, then it will be much more expensive. But the cooperation, I think, is the key and a sense of vision on the part of those people responsible for administering the program would help as well. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much, Mr. Gilchrest, for the statement and for the leadership you provide in this arena. You know, part of the greatness of America is we are thirsty and we just pick up the glass of water and drink it and think nothing of it. Incidentally, this is not high-priced imported bottled water. This is tap water. So we are doing a lot of things right and we are doing them exceptionally well. We just want to continue to improve. Mr. Pascrell.
Mr. PASCRELL. Thank you, Mr. Chairman. Mr. Chairman, I believe that the EPA's intentions with these proposed regulations are good. And that is not my question at all. The goal is to protect as many bodies of water as possible.
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There are over 100 rivers, streams, and lakes in the priority ranking in New Jersey—of those, at least six go through my district. There are two streams and one river having been ranked as high priority under the Clean Water Act. So I share your desire to get these cleaned up.
I have concerns. My concerns lay, however, with the effect the proposed regulations will have on three categories of the National Pollutant Discharge Elimination Systems. And these are my concerns: the combined sewer overflows, sanitary sewer overflows, and the urban stormwater runoff. Those are three major areas and I am sure what I am saying about my district in New Jersey, we can repeat that throughout the nation. Because who, in God's name, is going to pay for this?
I am particularly concerned with the urban sewage and runoff issues because they are costly to municipalities that have been burdened with inconsistent standards for cleanup. And one can imagine what the total cost would be if, following the guidelines, these have to be implemented at a certain period of time.
As a former mayor, I understand these costs very well. That is why I joined with Congressman LaTourette in HR3570, the Urban Weather Priorities Act of 2000. This bill amends the Clean Water Act to establish a consistent wet weather control standard for each of the three major areas of concern. It also calls upon the EPA to conduct demonstration projects on the use of watershed management or wet weather control in urban areas and to determine the cost effective management practices for wet weather flows.
I am asking the EPA to please explain to me, not at this moment, obviously, how their proposed regulations will affect urban stormwater runoff and other general permit water runoff. This is an important issue that is costly to municipalities. How do you envision this being paid for, or is this strictly a local responsibility? And, if it is, this is not going to get done, period.
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Mr. BOEHLERT. Thank you very much. The Chair is pleased to recognize Mr. Sherwood.
Mr. SHERWOOD. Thank you, Mr. Chairman. I am very interested in the proceedings today because in Pennsylvania we have some of the cleanest, most pristine, watersheds in the country and we also have some real problems running from combined sewer overflow and stormwater infiltration to small communities with no central sewer systems to acid-mine drainage. So we have a host of things in Pennsylvania that need to be addressed and I am anxiously awaiting your thoughts.
Mr. BOEHLERT. Is there anyone else that seeks recognition from the Chair? With the opening statements now behind us, let us go for the words of wisdom from the distinguished Panel of witnesses.
The Honorable Charles Fox, Assistant Administrator, U.S. Environmental Protection Agency; Mr. David Holm, from the Association of State and Interstate Water Pollution Control Administrators; from the Delaware River Basin Commission, the Executive Director, Carol Collier; from the National League of Cities, the City Council President from Eau Claire, Wisconsin, the Honorable William D. Neilsen, and Peter Guerrero, Director, of General Accounting Office, Resources, Community and Economic Development.
Mr. Guerrero, and let me add, we just so much appreciate the good work that GAO consistently does. And let me say, Mr. Fox, we appreciate the good work you do. And all of you are considered valued resources for this Subcommittee.
Your entire statements will appear in the record, but we would ask that you try to summarize them. The Chair is not arbitrary on the five-minute rule as some other Subcommittees are. This subject matter is too important to reduce it to 300 seconds of testimony, but we would hope that you would be sort of mindful of the clock and give us ample opportunity for questioning and a good dialogue back and forth. With that, the Honorable J. Charles Fox.
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TESTIMONY OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.; DAVID HOLM, PRESIDENT, ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS (ASIWPCA), AND DIRECTOR, COLORADO DIVISION OF WATER QUALITY; CAROL R. COLLIER, EXECUTIVE DIRECTOR, DELAWARE RIVER BASIN COMMISSION; WILLIAM NIELSEN, PRESIDENT, EAU CLAIRE, WISCONSIN CITY COUNCIL, ON BEHALF OF THE NATIONAL LEAGUE OF CITIES; PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION ISSUES, RESOURCES, COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE
Mr. FOX. Thank you, Mr. Chairman. I am going to do something a little bit different today. You have my 18 pages of statement. I think we are going to have a lot of good witnesses here and I think it is very important that we have some dialogue. I would like to just talk to you for a very short period of time about this program and what I think it means for the nature of our nation's waters.
I have appeared before this Committee probably a dozen times over the many years and I think it is fair to say that this program is probably the single most important in terms of achieving the ultimate goals of the Clean Water Act. When you look back on the progress that we have made in places like the Great Lakes, it is primarily a result of programs precisely like the TMDL program that we are going to talk about today.
TMDL stands for Total Maximum Daily Loads. It is a term that comes directly from the Clean Water Act and I like to think about it as a pollution budget. It is a way of trying to allocate ultimately the pounds of pollution that a water body can sustain and still meet our goals for fishing and swimming.
Back in the late '70s, when the Great Lakes were dying and Lake Erie was choked with algae, the governments of the U.S. and Canada came up with a bold, quantitative budget to reduce nutrients to the Great Lakes. And it was a result of that budget, a TMDL-like exercise, that we resulted in the progress that we have seen in the Great Lakes.
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A similar exercise was begun in 1985 by three states around the Chesapeake Bay and they are today implementing a budget of 40 percent reduction of nitrogen and phosphorous from point to nonpoint sources to the Chesapeake Bay.
Long Island Sound—they recently negotiated a similar exercise for and between Connecticut and New York. And it is precisely this kind of structure that the original authors of the Clean Water Act, I would argue, envisioned, would be perfectly appropriate at this stage in our development of water pollution control.
We proposed, as all of you know, a series of changes to this program in the form of regulations last summer. The comment period on this just closed on January 20. These changes were many years in the making. We actually had a Federal Advisory Committee that met for two years that included some representatives on this Panel. It was a truly broad-based group of folks that gave us about 100 consensus recommendations that we tried to embody in the proposal that we put out for public comment. It is just a draft. We are very much still taking comment and I look froward to the ideas that people put out today.
I would tell you that—a couple of things about the proposal. One, these problems weren't created overnight and they are not going to be solved overnight. We allow, in the proposal, a period of 15 years for TMDLs to be developed and ultimately implemented after that 15-year time frame in some cases.
We, this Administration, provided money in our budget. I have heard repeatedly from my state colleagues that they need funding to support the TMDL program development. And I testified yesterday that we have included an additional $45 million in our budget to help the states implement this important program.
I am not going to sit here and say that this is going to be an easy program. It is an incredibly ambitious agenda. Our current estimates are that there are about 20,000 water bodies out there that will need TMDLs to be developed. But I can tell you that this is a very common sense cost effective way to get to that endpoint.
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Because what a TMDL is about at its core is local governments, state governments, communities making decisions about what is the cheapest and best way to get to that water quality standards. Our proposal doesn't dictate that these controls have to come from ''X,'' ''Y,'' or ''Z'' sources. We simply say we would like the states to work with the communities to figure out for themselves what is the best way to achieve these ultimate goals and that they need to do this by looking at a range of point sources and nonpoint sources.
I will stop there and just say that I truly am looking forward to the comments that we have today and really have welcomed the leadership that this Committee, and particularly you, Mr. Chairman, have shown in this regard. Thank you.
Mr. BOEHLERT. Thank you very much. And I think we are all encouraged by the fact that you indicated that you are open minded and you are reaching out and you are trying to get as much information as possible before making a final recommendation. Thank you, Mr. Fox, for your good work. Mr. Holm.
Mr. HOLM. Thank you, Mr. Chairman, and Members of the Committee. I am David Holm. I am the president of the Association of State and Interstate Water Pollution Control Administrators. I am also Colorado's Director of Water Quality Programs.
ASIWPCA, as you know, is the association of state officials that are responsible on the front lines for addressing all of the water quality programs authorized by the Clean Water Act. And, as you know, the Clean Water Act of 1972 gave states the lead role in assuring that this nation's waters would be protected, restored, and maintained. We strongly support that goal and I think we have demonstrated that over the past quarter of a century.
As you know, in the 1972 Act, the concept of TMDLs was mentioned and states support the idea of establishing TMDLs to assist in the restoration of impaired water bodies. We have been in a continuing dialogue with EPA over the past eight or nine months or so and this has been very helpful. I think we have had a very forthright exchange with EPA.
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There have been a series of phone conferences, workshops jointly supported by the Western Governors Association and ASIWPCA that EPA has participated in. We had a two-day very intensive dialogue with EPA in December talking about the specifics of the new rule. And I think this has been very, very helpful.
EPA seems to be receptive to a number of the concerns that states have raised with the proposal. This issue-raising has been done in a very constructive and cooperative manner in the mode of states working with EPA as co-regulators.
Clearly, EPA is trying to move the water quality program forward and this is a very laudable goal that we support. We are concerned, however, that the regulation as proposed may have some fairly significant, unanticipated consequences.
The states have submitted detailed comments to EPA that were timely. Those comments have also been provided to the staff of the Committee. And, in addition, we have provided the Committee with some detailed comments today, as you know. I am not going to focus on the details of our comments, but I would like to focus on our broader concerns and issues.
In particular, one of the issues that I think we need to flag is that this new regulation is being proposed and put forward in the context of an existing statute and in the context of the same level of existing resources. And at the state level, the promulgation of a new regulation is unlikely to move our staffing levels and our budgetary resources forward in any significant degree. Until recently, the TMDL provision has been a very arcane regulation in the entire body of regulations that we address.
The effect of this proposal seems to propel TMDLs to the forefront of water quality management and, clearly, that is the stated goal that EPA has articulated. However, it appears to states, that would diminish many of the other provisions of the Act created by the Congress that we have been administering successfully over these many years.
As you know, there is already a framework for addressing point source discharges and assuring that point sources result in the attainment of water quality standards. We have provisions that assure that stormwater discharges will be controlled to the maximum extent possible. And that same provision applies to nonpoint sources to the extent the budgetary resources are there to support that level of activity.
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Until the Clean Water Act framework is changed, the TMDL requirements need to fit within those existing statutory provisions and, again, the available resources. The regulation, as proposed, would put EPA at the very center of every significant water quality-based decision that would be made in this country.
And this is—when the states were given the lead role in making water quality decisions, which is an even more foundational or a more important part of the foundation that we must rest on as we address today's water quality problems.
For example, this regulation would require a very rigorous and commanding approach for dealing with total—or excuse me, nonpoint sources that are presently unregulated. To a certain extent, EPA seems to be gaming this nonpoint source issue by merely redesignating what historically have been nonpoint sources as point sources.
And this would happen in the context of today's burgeoning permit backlog workload. In the nonpoint source arena. States shouldn't be made a surrogate for imposing nonpoint source requirements that EPA couldn't impose under its own authority.
To be sure, this nation has major nonpoint source water quality problems. But to address these problems, we are going to have to rely on, first and foremost, a very strong community-based approach to nonpoint source abatement. It is going to take major financial resources on the order of the historic grants program and the SRF Program to deal with these nonpoint source impacts. It is going to take time.
Nonpoint source management practices take time before they really show positive effects. And it is going to take flexibility to use an iterative and an adaptive management approach.
The proposed reg pays insufficient attention to some of the major water quality problems causing significant impairment of our water bodies. For example, atmospheric deposition is a major problem as are interstate and international water quality problems. EPA hasn't really acknowledged the huge expenditures that will be associated with a nationwide water body restoration program. And I know this Committee is concerned about those issues.
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There are also many questions, and I would refer you to page 6 of our detailed comments, that this reg would leave unanswered. And we are concerned that that could lead to future rounds of litigation. I am not going to go into those specific issues now.
The reg, if it is adopted in its current form, could also have some unanticipated consequences. For example, the offset provisions we are quite concerned about. They could lead to failure on the part of communities to put forward some very important environmental restoration projects, as well as, prevent some community revitalization and lead to urban sprawl.
And I would like to just close with the notion that this regulation has an enormous workload associated with it. Even in the best of all possible circumstances, states would be required to put forward, and EPA would be required to approve, over one TMDL per week for the next 15 years. And given the complexity of TMDLs, that is fairly unrealistic given the framework that we have.
As I mentioned earlier, we have provided very specific comments about the regulation. They are in our written comments. We want to thank the Committee for hearing us on these concerns, and especially the staff that worked so hard in supporting the Committee. And with that, I would like to close.
Mr. BOEHLERT. Thank you very much, Mr. Holm. Thank you for mentioning the staff, highly professional on both sides of the aisle and committed and dedicated. Ms. Collier.
Ms. COLLIER. Thank you, Mr. Chairman, Members of the Committee and Subcommittee.
Mr. BOEHLERT. May we have the microphone close up?
Ms. COLLIER. My name is Carol Collier, Executive Director of the Delaware River Basin Commission. The Commission is a federal, interstate agency charged with management of the Delaware River Watershed. And our commissioners are the governors of our four basin states, New York, New Jersey, Pennsylvania, and Delaware, and a federal member, who is currently the Commander of the U.S. Army, Corps of Engineers, North Atlantic Division, General Rhoades [ph].
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I appear before you today on behalf of the Commission, which supports the TMDL process. Interstate river basin commissions like ours are set up to manage on a watershed basis and we believe that EPA should encourage states to use interstate commissions to maintain consistency across state lines in the development of TMDLs.
I also speak on behalf of other interstate commissions and organizations today, including the Interstate Council on Water Policy (ICWP), and the role they have played and can play in forwarding the goals of the Clean Water Act, specifically through the TMDL process.
This morning I would like to talk about the role of interstate basin commissions, provide a specific example from the Delaware River Basin, express concerns about EPA's proposed role in interstate shared waters, the need for flexibility, and the need for increased funding.
Forming interstate basin commissions was and is a great idea because it makes the job easier for our member states and the federal governmental agencies. We are well established and have developed strong working relationships and trust, a key word, among federal, state, and local entities.
We provide consistency and equity among two or more states, and in some basins, EPA regions. In the Delaware Basin, we have four states and two EPA regions. And even though we have regulatory authority, I really do think that consistency and equity are a major role of interstates. One of the points of my job that I take really seriously is that we need to facilitate the view that a river is a shared resource and not a boundary line.
Let me give a Delaware River Basin example. We have a toxic management strategy which really formed the basis for the member states to set TMDLs. We do not set TMDLs. That is a state role. But we can provide the basis and work with our member states to do that quite effectively.
We have a Toxic Advisory Committee that includes member states, regulated community, environmental community, EPA, the scientific community. And working with that group, we established a process to define goals and program elements to manage toxics in the Delaware estuary.
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We do have regulatory authority, so we developed and adopted criteria to protect the uses within the water body. Prioritized pollutants, conducted field monitoring, and developed and applied models to determine that assimilative capacity, essentially the load that can be put on the estuary before we end up with water quality problems. That number, that load, is then turned over to our member states to use in their regulatory and TMDL process.
Our next step is then to develop waste-load allocations, which is easier for us to do because it crosses state boundaries. And then the states can use that in their permitting methods. The system works.
We just had a Commission meeting last week with a 5-0 vote to push forward load limits for two VOCs, DCE and PCE, that the states will be using in their program.
We are concerned about the role of EPA in interstate waters. In Section 130.36 of the proposed rules, it states that EPA may establish TMDLs in interstate waters. We feel that on waters without interstate agencies, the states should really decide what role they would like EPA to play, whether it is facilitator or partner, et cetera. But we really encourage the use of interstate basin commissions where they do exist.
We are not an agency coming down from above. We are not a private entity that would need to build trust. We are the member states and the federal government and we already have that working relationship trust and operating plans.
Another topic is flexibility. And in order for the TMDL program to be effective, flexibility and consistency is really important. And I really take to heart Chairman Boehlert's word of performance standards because you would really need to look at the local issues. Every watershed is different and has a different set of solutions. And so we do feel there should be TMDL deadlines for setting that load.
But as far as the implementation plan, yes, absolutely, we need to track it and we need to have implementation. But an implementation plan is only as good as the partner's buy-in. And sometimes it takes time, looking at nonpoint sources, point sources, even water quantity controls, stormwater controls, land-use issues, and can't be a force feed, but need to be a collaborative effort.
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My last concern is funding. Funds to establish TMDLs are currently inadequate. And the President's budget contains an additional $45 million in federal funds with $30 million required in matching funds. We fully support the need for that increase. This is especially important to us since DRBC and a number of other basins have not received their federal share of the annual budget in the last three years.
Mr. Chairman, to wrap up, don't forget the benefits of the interstate basin commissions. Most major rivers have them. We have the support of our member states because we make their job easier. In fact, there was one of my member states that informed me about this hearing and suggested that I testify.
We support the TMDL process. It promotes the watershed approach and that is really important. The question is, how it should be administered. Interstate river basin commissions have the organizational structure, technical capabilities to be a big help in this process. So, please, don't forget us and we are there to help.
Mr. BOEHLERT. Thank you very much. Mr. Nielsen.
Mr. NIELSEN. Mr. Chairman, and members of the Subcommittee, thank you for this opportunity to testify on the proposed TMDL rules. I am Bill Nielsen, President of the Eau Claire City Council, Eau Claire, Wisconsin. Ironically, Eau Claire in French, of course, means clear water. I also serve as a member of the National League of Cities Environmental and Energy and National Resource Steering Committee. And I also served as the only elected representative on the nation's TMDL Federal Advisory Committee.
I am here to testify today on behalf of the National League of Cities and the 16,000 cities throughout the United States. I would like to make clear at the outset of my testimony that, while city officials are distressed and frustrated by the endless series of unfunded mandates, we vigorously support the goals of the Clean Water Act.
In past regulations, there has been a partnership created between the federal and local governments to deal with pollution problems. This partnership has been successful in significantly reducing these pollution loads. The National League of Cities believes, however, the new TMDL regulations fracture this partnership and unjustly place the major burden on the nation's cities.
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The primary question raised by these regulations is who should bear the responsibility, those who are actually causing the problem for continued nonattainment of water quality standards, or those who can easily be controlled by the current structure of enforcement?
The National League of Cities believes the TMDL proposal, if not amended, will severely limit growth and economic development in urban areas, obstruct compliance with wet weather urban mandates, shift the financial burden of pollutant reductions from nonpoint sources to local tax and ratepayers, and generate endless litigation that will fall primarily on the National Pollutant Discharge Elimination System permit holders, not on the nonpoint sources of the stream degradation.
Several provisions in the proposed regulations will have severe negative impacts on growth and economic development in urban areas. These include the proposed offset requirement for increased discharges of 20 percent or more in cities over 50,000; incentives for growing corporate discharges to relocate in pristine areas; the implied imposition of zero discharges in every American city bordering an impaired water body.
We are have many problems with the concept of pollution trading. Simply put, if we cannot purchase the offsets, we cannot accommodate the needs of our growing population, nor will this regulation allow us to comply with many of our wet weather requirements as Representative Pascrell has mentioned. And I welcome the bill that he has introduced in the House to deal with this issue.
We doubt that the industrial dischargers located with our boundaries will be able to trade with municipal facilities. They, too, will be required to obtain offsets for any increased discharges they may need.
We have grave reservations about our ability to buy offsets from nonpoint sources. How are we to identify sources? How are we to trade with the sources when the nature of the pollutants in municipal and industrial settings are so different from those generally found in agricultural sources?
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We are dismayed that a federal agency would write regulations encouraging industrial dischargers to relocate in more pristine water bodies. The nation's public officials work very hard to keep their communities economically viable. NLC cannot support a policy that has such major ramifications and unattended consequences for the economic well-being of urban America.
We believe that the proposed changes to the anti-degradation policy will have the effect of placing every water body in the United States on the table for TMDL consideration. In our view, the proposed zero tolerance for any new discharges in every city bordering an affected water body not meeting water quality standards will preclude any growth or major redevelopment in developed areas and force growth and expansion to unpolluted areas.
Another issue I would like to address is drinking water regulations—the effect on drinking water. We presently are charged with the responsibility for cleaning the drinking water that you have here so that it is fit to drink. This regulation would also place the sole burden on the local municipality for protecting source water regardless of whether it fell within our municipal boundaries.
City officials believe the proposed rules will nullify all of the agreements we have already reached on previous Federal Advisory Committees that address many urban wet weather problems.
The nation's cites are just now beginning to develop their stormwater programs. About the same time these will be implemented, the new TMDL regulations will be placed upon cities. This will void or make redundant many of the efforts they are presently undergoing.
It is already, at the local level, an uphill struggle to commit the resources to deal with the problems of stormwater runoff, combined sewer overflows, and sanitary sewer overflows.
The NLC is concerned about the impact of implementing TMDLs on compliance with federal requirements to address combined and/or sanitary sewer overflows. Cities cannot comply with federal directives to redirect excess wet weather flows to treatment facilities while simultaneously being precluded from building them without offsets from other sources.
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We face significant financing issues here. On the one hand, the Agency requires costly strategies to address overflows. On the other hand, we can only get permits for such facilities if we also buy the offsets, all without any financial help from the level of government mandating the requirements.
As Ms. Collier stated, there was additional funding of $45 million in state grants. None of that money is directed to local sources. The proposed rule, in effect, mandates the nation's largest cities, or rather its taxpayers, finance the pollution control activities of private sector entities. Where there are point or nonpoint sources within or without or outside the city boundary, cities cannot finance the activities of private or for profit ventures.
How can we justify the use of local tax dollars to finance water pollution control practices of entities over which we have no authority? We, at the local level, are currently struggling, as I previously stated, with the implementation of the stormwater program. That is where we need to invest our limited resources, not in solving problems that lie outside our municipal boundaries.
NLC believes that the following changes are essential. The offset provision should be discretionary for municipal facilities on the part of the permitting agency. In such cases, offsets should be allowable only where it can be demonstrated that such a policy is appropriate and will not have adverse or unintended consequences.
Mr. BOEHLERT. Now, Mr. Nielsen, are you getting close to the end?
Mr. NIELSEN. Yes. Very close. The Phase II municipal stormwater permits should be exempt from the TMDL requirements. And, second, general permits, as currently designed, should remain the EPA's primary recommendation of permitting authorities as the optimum mechanism for municipal stormwater discharges.
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Only water bodies that are determined to be actually impaired by quality assured and quality control data should be subject to TMDL listing. Thank you for this opportunity to address your Committee and I would be happy to answer any questions.
Mr. BOEHLERT. Thank you very much. Mr. Guerrero.
Mr. GUERRERO. Mr. Chairman, I am Peter Guerrero. I direct GAO's environmental protection work and I am accompanied today by Trish McClure to my left, the senior evaluator who did the work which we will be reporting on today. I also want to thank you for your kinds words about GAO. We very much view our role as support to you, the Congress, to give you the information and sometimes to make recommendations to help you deal with these kinds of difficult questions.
I am pleased to be here today to discuss whether EPA and the states have the data they need to make critical water quality decisions required by the Clean Water Act. The Act has been credited, as you noted, with greatly improving the condition of the nation's waters, but much of this progress has come from addressing point sources. The job that lies ahead will be much more difficult because it will require that we address nonpoint sources which by their nature, represent a more difficult challenge.
Our ability to deal with these sources depends on the ability to monitor waters, to identify the most serious problems, and to develop strategies for dealing with them. Comprehensive and reliable data have therefore become especially important. As you know, attention to these remaining problems has been the subject of both lawsuits and EPA's proposed regulation.
And the first step in this regard involves listing them as not meeting water quality standards under Section 303(d) of the Act. Once listed, states would then need to develop and implement Total Maximum Daily Loads or TMDLs, which are intended to help restore water quality by reducing the amount of pollution these waters receive.
Last year, the Subcommittee asked us to report on whether states have the data to carry out these key management activities anticipated by EPA's proposed TMDL regulation. We expect to issue that report next month. Today we are going to discuss findings from this work as they relate to the following issues. And, Mr. Chairman, I am summarizing the statement that we have submitted for the record.
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Mr. BOEHLERT. Which is very much appreciated.
Mr. GUERRERO. First, I will address the adequacy of data for identifying waters that do not meet standards, even after the application of required controls. Second, I will address the adequacy of data for developing TMDLs for these waters. And, third, I will address the key factors that affect the ability of states to develop these TMDLs.
We conducted our work in all of the 50 states. We went in depth to four states in particular and we also surveyed the District of Columbia. We spoke to EPA officials in the field and headquarters, and think we got a pretty good feel for what these issues are.
Regarding the first question, Mr. Chairman, only six states responded that they have the majority of data needed to fully assess their waters. We believe this raises serious questions as to whether state 303(d) lists accurately reflect the extent of pollution problems in the nation's waters.
While state officials we interviewed told us that they feel confident that they have identified most of their serious water quality problems, some also acknowledge that they would find additional problems with more monitoring. Moreover, studies that have involved more thorough monitoring have identified unforeseen problems.
For example, in 1993, an EPA-funded study of toxins showed widespread levels of mercury in Maine, despite the belief of state officials that their lakes were meeting standards. As a result of these surprising findings, the state then issued advisories against the consumption of fish for all of the state's lakes.
While state officials acknowledge that they might not have identified all waters that need TMDLs, they also told us there are some waters under 303(d) lists currently that may, in fact, already meet standards and may therefore not require a TMDL.
The reasons varied widely. For example, officials in one state said they had mistakenly assessed some waters against higher standards than necessary. And, in another case, additional monitoring later showed that there was not the problem that was originally thought to be there.
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Regarding the second issue, the adequacy of data to develop TMDLs, states reported that they already have much of the data they need to develop these TMDLs for pollution problems caused by point sources, but they do not have a similar confidence in the data to do this for nonpoint sources. States can easily identify and measure point sources of pollution because these generally discharge pollutants through pipes or other discrete conveyances. So it is not surprising that 40 states reported they have the majority of data they need to identify point sources causing pollution problems and 29 said they have the majority of data needed to address these problems through TMDLs.
On the other hand, nonpoint sources, by their very nature, are difficult to identify and measure. As a result, developing TMDLs for pollution problems caused by nonpoint sources often requires additional data collection and analysis. For this reason, as the chart before you indicates, few states have the majority of data they need either to identify nonpoint sources of impairment or to develop TMDLs to address these nonpoint sources of impairment.
States also told us that their abilities to develop TMDLs for nonpoint sources is limited by a number of factors. Overwhelmingly, as you have heard here today, they have cited shortages in funding and staff as a major limitation to carrying out their responsibilities. In addition, they reported they needed additional analytical tools and assistance in using complex models to help them develop TMDLs for nonpoint sources.
There are several activities underway at EPA, as discussed in my prepared statement, that could help states in some of these areas. And, as you heard from EPA today, too, the EPA is also proposing to put more funds into TMDL development.
Nonetheless, there are still certain critical areas in which states need additional tools or assistance. One is a need for expert advice in using watershed models and other analytical tools. Because many remaining pollution problems are caused by nonpoint sources, states are increasingly faced with complex analysis requiring the use of these tools and models.
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In addition, EPA could help to disseminate 'lessons learned' among states by establishing a clearinghouse where states could easily access information on completed TMDL projects. But, perhaps most importantly, Mr. Chairman, we believe EPA needs an overall strategy for identifying and assessing states' needs for developing TMDLs. This concludes my statement, Mr. Chairman. Thank you.
Mr. BOEHLERT. Thank you very much, Mr. Guerrero. It is the Chair's intention to make an observation. To the credit of Mr. Fox, he did what he said he was going to do—listen to the Panel, open-minded and very receptive. And I want to compliment you on that.
Secondly, it is the Chair's intention to have the first round of questions exclusively for Mr. Fox and then excuse him because he has a very demanding schedule and we want him to get back and do some more of the good work that he has been doing.
With that understanding Mr. Council President, are you telling me that the real name for Clearwater, Florida should be Eau Claire?
Mr. NIELSEN. Actually we started out as Eau Claire when it was a French trading city. And then while—after the French and Indian War they changed the name to Clearwater for a short period of time. Then they incorporated three villages and went back to the Eau Claire name.
Mr. BOEHLERT. Thank you for that history lesson. Let's go right to Mr. Fox. Mr. Fox, the draft regulation proposes to give states and EPA the authority to designate certain animal feeding operations and silviculture activities as point sources for the purpose of providing reasonable assurances that TMDLs will be implemented if the sources are significant contributors to the water quality problem.
Setting aside the legal authority issue, do you intend to give states and EPA the authority to designate sources based on aggregate impacts from many sources or must the individual source itself be a significant contributor of pollution? To put it another way, do you intend to define significant contributor to include very small impacts from individual sources if there are many similar small sources in the watershed? If that is what you mean, then there is no practical limitation on your proposed authority to designate sources as point sources. So help us there.
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Mr. FOX. First, I appreciate the question because there has been a lot of misunderstanding on this and it is very clear to me that this is an area we are going to have to explain more as we go final.
The intent, first and foremost, was we were not going to create any new point sources that weren't already dealt with under the Clean Water Act. The Clean Water Act is very clear that we do not have the authority to regulate nonpoint sources and we have maintained that and we try to maintain that throughout the regulation.
The question comes as to some activities that are, in fact, point sources and whether or not they should, in fact, be regulated to achieve the goals of the Clean Water Act. The Clean Water Act specifically mentions CAFOs, concentrated animal feeding operations, as a point source. And our intent here was that the states would make the first decisions about whether or not those should, in fact, be regulated.
In a very rare situation where a state failed to make a decision to regulate a source, that water was, in fact, still not meeting water quality standards. The way we had envisioned this is that the Agency would have to make a finding that an individual source was, in fact, contributing to water quality problems before it would be permanent so that there would not be wholesale permitting going on of a range of kinds of activities. But we can clarify that more as we consider our comments.
Mr. BOEHLERT. Do you mean aggregate impact or a single impact? I mean—
Mr. FOX. For example, if a watershed is impaired by animal feeding operations on Maryland's Eastern Shore, there would be range of animal feeding operations that could be contributing to that problem and the State of Maryland could make a decision to permit a range of those activities, a range of those operations. Should the State of Maryland fail to do that and EPA is then forced to come in and make those determinations, we would look at individual facilities and see if they were, in fact, contributing to that water quality problem and make that determination then.
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Mr. BOEHLERT. But the contribution, would it be significant, because, I mean, it is hard to find anything that isn't having some contribution to the problem. Would you make it significant? That is an area that really needs to be clarified.
Mr. FOX. Fair enough. I think the proposal right now does talk about significant, but we can certainly work to clarify that.
Mr. BOEHLERT. Okay. And the other question I have, before yielding to Mr. Borski, is, I am intrigued by EPA's estimate that the TMDL proposal will cost states only $25 million a year. If so, why is the proposed 2001 budget request proposing $125 million a year for TMDL development and implementation—45 million in federal funding, with a state match of 30 million, under Section 106 of the Clean Water Act, and 50 million under Section 319 of the Clean Water Act? Isn't this funding proposal inconsistent with EPA's cost estimate of 25 million a year?
Mr. FOX. This is another area of confusion and I appreciate the opportunity to comment on this. We developed these cost estimates, as we do all of our cost estimates, based on the additional costs associated with this regulation, trying to understand what is the baseline. The Clean Water Act included in 1972 a TMDL program. We did not feel it was appropriate to cost out all of the costs associated with implementing the 1972 requirements. We just looked at the incremental additional costs associated with this proposal and came up with that cost estimate that you cited.
I think it is fair to say that we still understand that there is a deficit of spending out there for the TMDL program, which is why the Administration did go ahead and propose more than our estimate for the cost of the rule.
Mr. BOEHLERT. You were quick in responding to that than I thought, so my time hasn't run out. Give us an idea on the time frame in view of all the comments, all the interests. This is very serious business as we both well know.
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Mr. FOX. Our current time frame is that we will finalize this rule some time this summer. This has been, as you know, a rule that has been many years in development between the Federal Advisory Committee, the comment period, and all of the different ideas that we have been considering and that is our current time frame. The comment period closed January 20. We obviously are in the process of going through those comments as we speak.
Mr. BOEHLERT. How many did you get?
Mr. FOX. We got 30,000 comments.
Mr. BOEHLERT. And would you determine then that there is quite a bit of interest in this?
Mr. FOX. Indeed. It is certainly also fair to say that close to half of them were postcards that we received from a single industry that was running a campaign.
Mr. BOEHLERT. Okay. Those postcards have about as much impact on you, I would imagine, as they do on us. Thank you very much. Mr. Borski.
Mr. BORSKI. Thank you very much, Mr. Chairman, and, Mr. Fox. I appreciated greatly your testimony and your response to the Chairman's request. Obviously, I think, more in advance, that you were interested in listening to others on the Panel as well. But I was also struck with your superb ability, if I may, in laying out the proposal as you see it, particularly with the flexibility that you talk about and timing and implementation of the proposal, and also the lead role that the states and local governments will be playing in this.
And at the same time, through testimony that we will hear later, I hear the critics used such phrases as top down, inflexible, and mandates. Explain that to me, if you can.
Mr. FOX. I will let others speak for themselves, but I can give you my impression of this. Our intent is that the states and local governments will be in the leadership role, making the decisions on a watershed basis just as they should be. But the Clean Water Act also includes a very clear requirement that should the states fail to do that, EPA has a duty to do it in place of the states. I think this is where the tension ultimately comes out.
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We tried to design this rule to be as flexible as possible, but we did have to put in provisions, in case states failed to take actions, what EPA would do. And many people are reading those provisions and assuming, frankly, the worst in some cases about how EPA is going to make those judgments. And I think that is where some of the tension happens.
Mr. BORSKI. Do you believe it is possible to attain water quality standards without conducting TMDLs?
Mr. FOX. I have only been in this business 17, 18 years and I can tell you that the most successful efforts I have ever seen have been when you look at a complete pollution budget, you look at all the sources, and you make common sense decisions about how to get to that endpoint. So I think TMDLs are going to be very important to getting there.
Mr. BORSKI. Mr. Nielsen expressed concerns about additional requirements on municipalities. And I see the opportunity to more aggressively reduce nonpoint sources of pollution. How do you respond to Mr. Nielsen's concerns?
Mr. FOX. And he can certainly speak for himself on this, but what I have detected from a number of point sources, if I can call Mr. Nielsen a point source, is—
Mr. NIELSEN. We are actually both. More concerned with the nonpoint.
Mr. FOX. —is a fear that the state agencies are not going to make decisions about nonpoint sources and so they will be left with a disproportionate share of solving that problem. And all the data that I have seen suggests that you can reduce pollution from nonpoint sources much more cost effectively than from point sources and that rational decisions being made at a watershed basis will probably result in people trying to focus on the nonpoint sources as opposed to the point sources.
In Chesapeake Bay, the cost of reducing a pound of nutrients was about ten-fold cheaper if you could do it through nonpoint than through point sources.
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Mr. BOEHLERT. Thank you very much, Mr. Borski. Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman. Mr. Fox, sort of a big picture question. Do we, as a nation, have the knowledge and the resources to engineer a solution to this nonpoint source problem to clean up the nation's waters?
Mr. FOX. As usual, my congressmen always ask me the toughest questions.
Mr. GILCHREST. Oh. I didn't know I was your congressman.
Mr. FOX. The short answer is I think that we can engineer a lot of solutions and that there is a lot more that can be done with what we call best management practices to try and minimize the impact of various nonpoint sources.
Mr. GILCHREST. And I would include best management practices and land use into the whole concept of engineering a solution to the problem. That is engineering a particular buffer or forest or whatever.
Mr. FOX. I think the—
Mr. GILCHREST. Do you think the resources that have been budgeted during this cycle, the amount of money is sufficient to do this massive undertaking?
Mr. FOX. I think there are sufficient resources to do the analysis of the management structure and the framework. I won't, for a minute, suggest that we, at the federal level, have budgeted enough resources to actually implement all of these programs, nor have the state and local governments yet budgeted enough to do that. This is going to be something that takes many years and ultimately many millions of dollars.
Mr. GILCHREST. Can you address the issue—if we are talking about non-source pollution and if you are in a multi-state area and these non-sources are coming from a variety of places, the issue of air deposition? Now, in the Chesapeake Bay, probably over 30 percent of the nutrient overload comes from air deposition, comes from a variety of sources. But that is—when you put that test tube at the mouth of the Chester or Choptank or Nanticoke River, part of that problem could be coming from Indiana. Is there some degree of understanding of that and how have you dealt with that issue?
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Mr. FOX. This is among the more complicated issues. There is increasing scientific understanding of how nutrients cycle in the atmosphere and some heavy metals. Many of the lakes in upstate New York and in throughout Maine are contaminated through mercury that is probably coming through atmospheric deposition as well.
Developing TMDLs and pollution budget for atmospheric sources is clearly something that is going to take some time.
Mr. GILCHREST. So air deposition is not a factor in—air deposition is not a factor in your approach to implementing the TMDLs right now, as far as finding the source of that air deposition, but in that test tube are nutrients that may have come from West Virginia or Pittsburg in the Chesapeake Bay.
I am going to follow up with one other question before my time runs out. Is there any—I have some concern, for example, with dredging policy of our beloved Corps of Engineers, with whom I have a great deal of respect for, in the Chesapeake Bay, in particular, where they want to mitigate the nutrients released from dredging operations to upgrading or using some O&M funds to upgrade sewage treatment plants. In other words, this idea of offsetting or trading.
My concern with that is right now, I don't know of anybody that, through their analysis, even the Chesapeake Bay program, calculates the amount of nutrients or toxins from dredge material in their policy to reduce the nutrient overload in the Chesapeake Bay. Is there some—have you approached the Corps of Engineers, not only in their project for dredging projects or damn projects or whatever throughout the country, and collaborated some of your efforts with your approach to TMDL with them?
Mr. FOX. I am not aware of any, but I will follow up and I might become aware. Let me get back to you on that. I can tell you that anytime you are talking about trading and offsets, and I have seen this in other places, not in the context of the Army Corps of Engineers, you need to have a very strong scientific basis for making decisions about those trades. And if you don't have that scientific understanding, a trading program simply won't work. But I will look and see what we have done, if anything, in the dredging area with the Army Corps.
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Mr. GILCHREST. I see. Thank you very much.
Mr. BOEHLERT. Thank you. Mr. Sandlin.
Mr. SANDLIN. Thank you, Mr. Chairman. I wanted to ask Mr. Fox some questions about timber and the forestry industry. For the entire history of the Clean Water Act prior to 1997, the EPA indicated that forestry activities were not a point source activity. Isn't that correct?
Mr. FOX. Not exactly.
Mr. SANDLIN. And why would you say that—let me read where you say in 41 Federal Register 6281, ''The Clean Water Act and its legislative history make it clear that it was the intent of Congress that most water pollution from silvicultural activities be considered nonpoint in nature.'' And that is they way you interpreted it for 27 years. Isn't that correct?
Mr. FOX. Again, sir, we have defined a number of silviculture operations as point sources and regulated them. These include log-transfer stations, rock-crushing activities. And I think it is a handful of—-
Mr. SANDLIN. So the EPA thinks rock-crushing activities is timber.
Mr. FOX. As part of a silviculture operation, sir, they receive permits and there is technology standards for them.
Mr. SANDLIN. Actually, your 1987 Amendments did not change the pre-existing definitions of point source other than to exclude agricultural stormwater discharges. Is that correct?
Mr. FOX. When Congress enacted the 1987 Amendments, they did include a stormwater provision which did give the Agency broad authority to regulate activities that cause impairments as a result of stormwater. You still have to meet the definition of a point source and nothing in our proposed regulation would change the definition of a point source or, in any way, regulate activities that are considered nonpoint source.
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Mr. SANDLIN. Exactly. There is absolutely no expressed authority in the '87 Amendment that allows you to move sources that were previously being nonpoint source into point source. Is there? No expressed authority.
Mr. FOX. We have no authority to regulate nonpoint sources and I would never suggest that we do.
Mr. SANDLIN. I didn't say that. There is no expressed authority in the statute that says that. Is there?
Mr. FOX. There is ample authority at Section 402(p) that gives the agency the authority to regulate stormwater from a wide variety of activities that meet the definition of point source.
Mr. SANDLIN. That is an interesting answer, but that wasn't my question.
Mr. FOX. Well, I am not—
Mr. SANDLIN. What I am saying is, there is no expressed authority in the legislation that allows you to move from one definition to the other. Is there?
Mr. FOX. I don't—I am—I don't know what you mean by moving something from one to another. I—
Mr. SANDLIN. Moving means to change. To change from point source to nonpoint source or back and forth. That is what moving means.
Mr. FOX. And you are suggesting that I have done that with something.
Mr. SANDLIN. No. I said there is no expressed authority in the statute to allow you to do that. Is there?
Mr. FOX. I guess not, if that is the question.
Mr. SANDLIN. Okay.
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Mr. FOX. Sorry. I am not quite following.
Mr. SANDLIN. And there is no legislative history showing an intent to make those changes. Is there?
Mr. FOX. I guess not, sir.
Mr. SANDLIN. Okay. Now, the Clean Water Act already requires, in 305(b), that the states report biannually on the quality of their waters to the EPA. And that is reported on to Congress. And I think you have testified to that. Is that correct?
Mr. FOX. That is right.
Mr. SANDLIN. Do you think then really there is a need for a 303(d) list as a comprehensive accounting if the states are already required to do that?
Mr. FOX. The statute included 303(d) to ask the states to prepare a separate list of those waters that they believe needed TMDLs that were impaired and not meeting water quality standards. The lists served two different purposes. And, as such, yes, I do believe they are important. Do I think that they could be done together and a lot more efficiently? Absolutely.
Mr. SANDLIN. Do you feel like the states are doing a fairly reasonable job in that or not?
Mr. FOX. On 305(b) reports? Based on the testimony of GAO here today and my general knowledge of it, I think there is a significant room for improvement and I think most of the states would agree.
Mr. SANDLIN. Okay. Now, Section 319 of the Act requires that nonpoint sources be regulated by the states. Is that correct?
Mr. FOX. There is nothing in the Act that allows us to regulate nonpoint sources, sir.
Mr. SANDLIN. I know. The states do that. Is that correct?
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Mr. FOX. Section 319 authorizes a grant program for the states to reduce nonpoint source pollution.
Mr. SANDLIN. The states. Correct.
Mr. FOX. That is correct.
Mr. SANDLIN. And typically that has been where we have regulated forestry activities. Is that correct?
Mr. FOX. Again, I am aware that some 319 dollars have gone to forestry best management practices, I think, if that is the question.
Mr. SANDLIN. Actually, the 1987 Amendments on stormwater were designed—they focused primarily on industrial municipal discharges—large discharges. Is that correct?
Mr. FOX. There were, I think, three or four categories of stormwater industrial municipal large, municipal small. And then the other provision that said the Administrator can use this provision to control pollution from any other stormwater sources that are a significant source of pollution in the nation's waters. It was a fairly broad provision, I can get the exact cite if you would like it.
Mr. SANDLIN. I have got it.
Mr. BOEHLERT. The gentleman's time has expired.
Mr. SANDLIN. Thank you. Appreciate it.
Mr. BOEHLERT. The Chair recognizes Mr. Sherwood.
Mr. SHERWOOD. Thank you. The thrust of my question is the ability or the intent of EPA to cooperate with the very significant organizations that are already working on these problems. And the two that I am going to use are the Chesapeake Bay Initiative and the Delaware Watershed.
And there have been tremendous strides made on nutrient runoff and the Chesapeake Bay has put some money into agriculture so that the farmers would put in some manure storage and keep the clean water clean. And there have been great strides made in that. How are you going to sort of give credit for this voluntary work?
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I think there is a great deal of apprehension in the agricultural community that they have made great strides on their own and they have people that are about to invest money to do things at the present time and there is a feeling that they will be afraid now to go on, on their own, because EPA is coming in with a hammer.
Mr. FOX. This is an area that we probably need to clarify. But the intent that we had was absolutely to support voluntary programs. And I have heard this concern from a number of farmers too and we probably need to reiterate that.
There is no reason whatsoever to do anything if a voluntary program is working. And we need to make it very clear in this rule, as we develop it, that we are going to first look to the voluntary programs that have been built up by the states in making a determination as to whether or not they have an adequate program.
We have, in fact, worked very successfully with the Chesapeake Bay and I am proud to say that on a bipartisan basis, two Republican governors and one Democratic governor, we have come together with a strategy to incorporate TMDLs into the voluntary program of the Chesapeake Bay. And I think it is a remarkable success.
All of this is predicated on watching how well the voluntary programs are working. If we get down the road, five, ten years down the road and we realize the voluntary programs aren't working, well, then we need to look and see if there is something else we need to do. But the proposal, as written, puts an emphasis first on the voluntary programs.
Mr. SHERWOOD. My other comment would be on timbering operations. Timber, both commercial and private timber, is the—the use of ground to grow timber is the greatest asset that we have in the country towards producing clean water because the very fact that we have ground-in-timber production means that it is then the greatest of filters. So I think you should be very wary of your interaction and your relationship with timber producers because they are your greatest ally. And if you drive some of them out of business, you will have problems that you don't dream of now.
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Mr. BOEHLERT. Mr. Sherwood, I am sure he recognizes that. Here is the deal. We are going to try to conclude this round, you know, before the vote so we can excuse the Administrator and get over and make the vote and come back for the rest of our witnesses. So would you mind deferring?
Mr. SHERWOOD. That is fine.
Mr. BOEHLERT. Thank you very much. Mr. Baird, do you understand the rules, ground rules? Thank you.
Mr. BAIRD. Thank you, Mr. Chairman. Two very quick—well, one very quick question and one will be a lot longer. But I will do the quick one now and we will save the longer one for a different conversation.
Our Department of Ecology has worked very hard in the State of Washington. As you know, we have got salmon problems and other problems. To integrate a proposal called the Forest and Fish Agreement, we have worked very hard on this in the state. We think we have a good agreement and now there is great concern, and I have heard many concerns on the forestry side here, that perhaps the TMDL ruling could come in and basically torpedo all these good efforts. Can you give us some assurance that that won't happen?
Mr. FOX. Absolutely. And my conversation dialogue with Mr. Sandlin quickly got into some of the legal issues, but this is, I think, directed to Mr. Sherwood's question too. I agree completely. A good forestry operation is going to be very essential to good water quality. And I think that if a state program like that in Washington State has been developed that is achieving the water quality goals, that is absolutely going to satisfy the TMDL requirements.
Now, do we have to revisit this in 20 years and see how it is going? Perhaps. But I think we can make determinations today that programs like that in Washington are going to be deemed in compliance with the Federal Endangered Species Act as well as the TMDL program and it is only good government that we can give that kind of quick decisions to people.
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Mr. BAIRD. What I will follow up with you on also is that we have home builders and others who have set best practices kind of standards and they are working very hard to implement those. And they are very concerned, I think, as other Panelists have said, that they can implement those only to then have that—those best efforts be undermined by a TMDL. And I would hate to see that happen because they are trying their best to do the right thing already in many cases—not all, but many are. And I hope we can work together. Thanks, Mr. Chairman.
Mr. BOEHLERT. Thank you very much, Mr. Baird. Dr. Horn.
Dr. HORN. Thank you very much, Mr. Chairman, and I thank the gentleman from Arkansas for yielding. Mr. Holm, in your role as Director of Water Quality for the Association of State and Interstate Water Pollution Control Administrators, let me ask you, as I understand it, the Environmental Protection Agency is taking the position that Unfunded Mandates Reform Act does not apply to the Total Maximum Daily Loads regulations.
In the Federal Register, EPA states that the rule, ''Does not contain a federal mandate that may result in expenditures of 100 million or more for state, local, and tribal governments in the aggregate.'' In fact, EPA states in the Federal Register that, ''The costs for states, territories, and authorized tribes to implement the requirements of today's proposal are not expected to exceed $25 million in any one year.'' Do the state agencies agree with EPA?
Mr. HOLM. No, sir. We do not agree that the—even the incremental costs of—associated with this rule would be under $100 million. I think it is very important to recognize that the cost of developing TMDLs has very specific monitoring costs associated with that development, specific modeling and assessment costs, very specific work that needs to be done with the communities that are affected, and then evaluation costs to see whether that TMDL has been achieved. That is only at the state level.
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When we consider what happens at the local level, trying to implement and follow through, or even participate in the process that I just mentioned, the costs are astronomical.
Dr. HORN. Let me ask you, how much do states think this regulation will cost them to implement? Do you have any figures on that?
Mr. HOLM. To actually carry it out and achieve water quality standards, it is many billions of dollars to restore this nation's waters in accordance with TMDLs.
Dr. HORN. Do you have any survey of each states' recommendations as to what it might take them?
Mr. HOLM. I don't think we have comprehensive information along those lines, but we have enough information to make a very good educated guess.
Dr. HORN. Is the Administration's 2001 budget request providing an additional $45 million in federal funding under Section 106 of the CWA and an additional 50 million under Section 319 of the CWA—is that adequate?
Mr. HOLM. It is not adequate. It is extremely helpful, but, no, it is not, by any measure, adequate.
Dr. HORN. So what is the gap then basically? What would you like to see the Administration recommend to us?
Mr. HOLM. We would like to see a tripling in the historical levels of funding, recent historic levels of funding under 106 and at least a tripling of the 319 budget.
Dr. HORN. I will be glad to yield back a portion of my time to the gentleman from Arkansas if you would like. Or do you want five minutes on your own?
Mr. BOEHLERT. The gentleman is recognized.
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Mr. HUTCHINSON. Thank you, gentlemen, for yielding. And I just wanted to follow up with a couple of questions to Mr. Fox primarily just so I will get a good understanding. The EPA has a way of raising issues that get people excited. There were over 3,000 people who attended the hearing in Texarkana.
Mr. FOX. I heard 4,000.
Mr. HUTCHINSON. It gets larger and larger and the numbers were similar in El Dorado. And, you know, you are talking about post cards? I would encourage you to pay attention to the post cards. I think they come from people in my district—we get those as well. But, if you are looking at agricultural activities, which are currently nonpoint sources of pollution, if they are under the regulation you are able to redefine them as point source polluters, if necessary, if the state determines, under the TMDL, that they are a contributor?
And then, under that scenario, they would have to get a permit for continued operation. Am I correct in that analysis?
Mr. FOX. Potentially. Except that it would never—
Mr. HUTCHINSON. Potentially is what we are concerned about.
Mr. FOX. I understand. The law specifically exempts agricultural stormwater. The law—as a point source. The law does not exempt silvicultural activities.
Mr. HUTCHINSON. Well—
Mr. FOX. So the story you gave—and the only amendment I was going to make was agriculture—there would be no federal permit that would be given for an agricultural stormwater situation as you had described. The state could have their own permitting requirements.
Mr. HUTCHINSON. And so if—but you are saying there is potentially a scenario where—
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Mr. FOX. Silvicultural operations.
Mr. HUTCHINSON. And explain that to me.
Mr. FOX. The—
Mr. HUTCHINSON. What would be an example of it? Give me an example of it.
Mr. FOX. The way we tried to structure this proposal was—
Mr. HUTCHINSON. Just give me an example of what you just said.
Mr. FOX. If you had to—if you had a situation where a forestry operation was causing a water quality problem, the state agency could require that operation to implement what we call best management practices. Say you got to put a buffer strip around a stream, you got to construct your road in a certain way.
Mr. HUTCHINSON. So—and so a forestry operation could fit within the definition of what you outline where they would have to get a permit.
Mr. FOX. That is correct. Under certain—
Mr. HUTCHINSON. And would a hog operation or a poultry operation sometimes fit within that definition?
Mr. FOX. Absolutely.
Mr. HUTCHINSON. And so it could be the scenario, potentially, because you are redefining what a point source polluter is, that they would have to come to the EPA to get a permit to do their agricultural or their forestry operation.
Mr. FOX. With all due respect, sir, I am not redefining anything. The Clean Water Act specifically says that if you are an animal feeding operation that meets certain tests, you have to have a permit. It is in the Clean Water Act. It has been there since 1972.
Mr. HUTCHINSON. Well, you had—it is my understanding you testified in response to Mr. Sandlin's questions that you have no authority for nonpoint—permits for nonpoint agricultural enterprises.
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Mr. FOX. Agricultural stormwaters. The distinction is the Clean Water Act describes point sources and nonpoint sources as having certain attributes. And you have to meet certain requirements to become a point source.
Mr. HUTCHINSON. I was just handed the EPA fact sheet which says that the states may be—may not be able to provide reasonable assurance that certain nonpoint sources will meet their allocated amount of reductions and these sources—and it gives—the states authorization to designate these sources as point sources.
And so I think that that is one of the reasons you have three or 4,000 people showing up because they have this concern that what has traditionally been a non-regulatory—you know, where they engage in best management practices, is being changed and it is becoming top-down, is heavy-handed, and Washington-oriented. And I just want to express my concern about this. And, the 30,000 comments—how—what is the percent breakdown for and against? Have you analyzed that yet?
Mr. FOX. I don't typically receive a lot of—it is hard to make that kind of distinction.
Mr. HUTCHINSON. You don't particularly receive a lot of comments in support of it. Is that what you were starting to say? So that—I mean, the 30,000 that were primarily in opposition to the proposed regulation.
Mr. FOX. I would be happy to share these comments with you. It is hard to characterize whether they were for or against.
Mr. HUTCHINSON. Well, aren't you going to ultimately do that in your decision-making process?
Mr. FOX. We will respond to each and every comment we have received as part of the rule-making docket.
Mr. HUTCHINSON. And will you take them into consideration?
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Mr. FOX. Absolutely.
Mr. HUTCHINSON. And even the 15,000 postcards?
Mr. FOX. Absolutely.
Mr. HUTCHINSON. All right. And my letter.
Mr. FOX. Absolutely.
Mr. HUTCHINSON. Thank you and I yield.
Mr. BOEHLERT. Thank you very much, Mr. Hutchinson. You can see that this is an area where we have deep interest and legitimate concern and we want to work constructively with all to fashion something that passes the common sense responsible task. What the Chair is going to announce now is that we have a call that we have a vote on and there are going to be other votes coming.
So we will say to all the Panelists, we appreciate your participation. We are going to follow up with some individual questions that we would appreciate an answer to in a timely manner.
But for the purposes of this hearing, it is now concluded. Thank you very much each and every one of you. It was an easy road for you. But, Mr. Fox, I know you have been very attentive.
Mr. FOX. Yes. And, well, I will follow up. Thank you.
Mr. BOEHLERT. And respond to Mr. Hutchinson. Thank you.
[Whereupon, at 11:55 a.m., the subcommittee was adjourned.]
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