[Senate Hearing 106-389]
[From the U.S. Government Publishing Office]
S. Hrg. 106-389
CLEAN WATER ACTION PLAN
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MAY 13, 1999
__________
REVIEW OF A WATER POLLUTION CONTROL ``BLUEPRINT'' PROPOSED BY THE
PRESIDENT
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
59-384cc WASHINGTON : 2000
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
MAY 13, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 8
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 9
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 47
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2
Analysis of S. 1175.......................................... 3
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 46
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 48
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 4, 45
WITNESSES
Beach, Gary, Administrator, Wyoming Department of Environmental
Quality........................................................ 26
Prepared statement........................................... 86
Responses to additional questions from:
Senator Chafee........................................... 88
Senator Crapo............................................ 89
Browner, Hon. Carol M., Administrator, Environmental Protection
Agency......................................................... 6
Prepared statement........................................... 48
Responses to additional questions from:
Senator Chafee........................................... 53
Senator Crapo............................................ 62
Senator Hutchison........................................ 71
Senator Inhofe........................................... 65
Senator Lieberman........................................ 57
Senator Thomas........................................... 59
Glickman, Hon. Dan, Secretary, Department of Agriculture......... 9
Prepared statement........................................... 78
Responses to additional questions from:
Senator Chafee........................................... 80
Senator Crapo............................................ 83
Senator Thomas........................................... 84
Godbee, John, Environmental Manager, Forest Resources,
International Paper Corp., on behalf of the American Forest and
Paper Association.............................................. 28
Prepared statement........................................... 91
Responses to additional questions from:
Senator Chafee........................................... 93
Senator Crapo............................................ 94
Heilig, Dan, Executive Director, Wyoming Outdoor Council, on
behalf of the Clean Water Network.............................. 30
Prepared statement........................................... 95
Responses to additional questions from Senator Chafee........ 99
Nishida, Jane, Secretary, Maryland Department of the Environment. 35
Wilson, Ross, Vice President, Texas Cattle Feeder's Association,
on behalf of the National Cattlemen's Beef Association......... 33
Prepared statement........................................... 106
Responses to additional questions from Senator Chafee........ 122
ADDITIONAL MATERIAL
Letters:
Atlanta Audubon Society...................................... 135
Michael Evans................................................ 136
National Cattlemen's Beef Association........................ 111
State of Michigan, Department of Environmental Quality, with
attachments................................................ 137
Wind River Environmental Quality Commission.................. 146
Several U.S. Representatives...............................119, 121
Several U.S. Senators........................................ 118
Statements:
American Farm Bureau Federation.............................. 124
Associated General Contractors of America.................... 133
Clean Water Network, Paul Schwartz........................... 100
Earth Justice Legal Defense Fund, Mary Wells................. 102
National Association of Conservation Districts............... 147
Natural Resources Defense Council, Robbin Marks.............. 102
The Coast Alliance, Jacqueline Savitz........................ 101
Yozell, Sally, Deputy Assistant Secretary for Oceans and
Atmosphere National Oceanic and Atmospheric Administration,
Department of Commerce..................................... 140
CLEAN WATER ACTION PLAN
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THURSDAY, MAY 13, 1999
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m. in
room 406, Senate Dirksen Building, Hon. John H. Chafee
(chairman of the committee) presiding.
Present: Senators Chafee, Inhofe, Thomas, Baucus, Hutchison
and Crapo.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. Good morning, everyone. We're delighted to
have everyone here.
I want to thank the witnesses for also appearing before the
committee this morning.
On February 19, 1998, in response to a directive from the
Vice President, the Department of Agriculture and the
Environmental Protection Agency unveiled the Clean Water Action
Plan. The Plan is a combination of 111 ongoing and future
actions aimed at improving our Nation's water quality. The
purpose of today's hearing is to review and discuss this Clean
Water Action Plan. I know that several of the members of this
committee have questions and concerns.
Before we begin, I'd like to note the remarkable progress
we have made under the Clean Water Act and the great challenges
that lie ahead.
I think the Clean Water Action was passed in 1972. Before
we passed the Clean Water Act, approximately two-thirds of our
waters were neither fishable nor swimmable. Due to the hard
work of local communities, States, the Federal Government and
industry, we have reversed that statistic. Today, approximately
two-thirds of our waters are now fishable and swimmable.
However, we lack basic data about the health of many water
bodies and watersheds. The 1996 surveys conducted by the States
examined only 6 percent of all ocean and shoreline miles and
only 40 percent of all lakes and estuaries. We know that many
watersheds are impacted by pollution, but 615 of the
approximately 2,000 watersheds in the Nation lack the necessary
data to make a reliable assessment.
We may not know everything but what we do know gives us
cause for concern. According to the 1996 water quality
inventory, 36 percent of the river miles surveyed, 39 percent
of the lake acres and 28 percent of the estuary square miles
surveyed were too polluted to support basic uses such as
fishing and swimming.
EPA's Index of Watershed Indicators lists 458 watersheds
with aquatic conditions well below State and tribal water
quality goals. An additional 708 watersheds are listed as being
marginally impaired.
One of the primary causes of waterbody impairment is
polluted runoff from residential areas, city streets,
agricultural lands, forest pollutants and pollutants settling
out of the air. EPA estimates that 75 percent of all water
quality impairment is linked to nonpoint source pollution.
In contrast to point source pollution, which are relatively
easy to locate, monitor and permit, non-point sources are
diffuse, hard to locate and even harder to measure. Non-point
source pollution control forces us to deal with local land use
decisions and individual actions. Increasingly, the debate is
centered on such questions of how we farm, where we build and
who should make these decisions.
This committee has wrestled with non-point source pollution
for a good number of years and that is really difficult.
The majority of the 111 different actions in the Plan
address non-point source pollution. Some have voiced concern
over the process by which this plan was developed and whether
the agencies charged with carrying out these actions have the
necessary authority under existing environmental law.
In addition to these procedural and legal issues, we need
to examine whether the Federal Government and the States have
the resources necessary to implement these 111 actions.
Finally, we should consider whether the actions in the Plan
address the appropriate environmental priorities.
Senator Baucus isn't here, I know he's expected to be here
very shortly. Senator Inhofe, do you have an opening statement?
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Yes, I do, Mr. Chairman.
I regret that we're marking up our defense authorization
bill and I have a lot of provisions in that and will not be
able to stay here. I'd like to stay here to be able to hear the
testimony of Administrator Browner and also my neighbor.
To let you know how strange politics are, Secretary
Glickman's godfather happens to be my campaign chairman. You
figure that out.
This is very important. I've been hearing from my many
ranchers in Oklahoma who have expressed concern over the EPA/
USDA Unified National Strategy for Animal Feeding Operations.
Generally, these comments criticize the Federal Government for
coming into States and mandating a ``one-size-fits-all''
program that may or may not get to the heart of the problem.
In Oklahoma, we have already passed significant legislation
that deals with issues relating to the swine and poultry
industry. We have really a booming industry in our States of
Kansas and Oklahoma.
I'd like to introduce a 1-page analysis of the bill that
was passed last year by the Oklahoma legislature that outlines
all new measures that poultry and swine operations must comply
with. I received a letter from the Oklahoma Secretary of
Environment, Bryan Griffin, that sums it up best. He states,
``The Federal intervention is unnecessary and could, in fact,
have a negative impact on our ability to adequately address the
problem at hand.''
We have also received comments that address specific
sections of the strategy, including deregulation of multiple
animal feeding operations in a single watershed and questions
regarding the EPA's authority to regulate non-point source
water pollution.
In section 4.5 of the strategy, you address significant
contributors to water quality impairment and state that, ``Even
a collection of smaller AFOs that may cause impairment should
be designated as CAFOs.'' You've elected to attack small,
independent operators who may not have the resources and may
not be a significant contributor in a particular watershed.
Potentially, you could be punishing an operator based simply on
his location.
Questions have also been raised about the EPA's authority
to regulate non-point source issues under the Clean Water Act.
Congress clearly meant for point source discharges to be
regulated at the Federal level and non-point sources to be at
the discretion of the States. Now you have potentially expanded
your authority and are threatening to regulate some operators
who would have never qualified as CAFOs prior to this plan. The
EPA and USDA should pull back and let the States continue to do
their good work that they've been doing on these problems.
Thank you for giving me the opportunity, Mr. Chairman, and
for holding this hearing. A lot of Oklahomans are very
interested in this.
[This attachment referenced by Senator Inhofe follows:]
Analysis of Senate Bill 1175 (``Hog Bill'')
Office of the Secretary of Environment
new measures
requires $0.80 per ``animal unit capacity'' for all LMFOs
mandatory licensing for all swine and poultry liquid waste
facilities > 1,000 animal units
ten foot separation between bottom of lagoon and maximum
groundwater elevation (unless ODA grants an exception down to 4 feet
under certain conditions) for all LMFOs
requires ODA building permits prior to LMFO construction/
expansion
education/training for all LMFO operators and animal waste
personnel
leak detection systems or monitoring wells for all LMFOs
increases and standardizes setbacks for LMFOs with
applications on file after March 9, 1998 or established after June 1,
1998:
2 miles for operations > 4,000 AU
1.25 miles for operations * 2,000 AU
0.75 mile for operations > 1,000 AU
0.5 mile for operations > 600 AU
0.25 mile for operations > 300 AU
3 miles from non-profit camp/recreation site
boundaries
3 miles from Scenic Rivers
3 miles from State-owned historic properties or
museums
3 miles from public drinking water wells
1 mile from Outstanding Resource Waters listed in the
standards
3 miles from National Parks
allows NRCS lagoon liner specifications only for
facilities <1,000 AU
annual lagoon liner evaluations conducted by a licensed
P.E. or NRCS engineer for all LMFOs
liner retrofitting for all LMFOs located in ``nutrient-
limited watersheds'' or ``nutrient-vulnerable groundwaters''
allows ODA to deny licenses based on evidence that
property values will be degraded
any swine AFO that voluntarily obtains a license must meet
all requirements of an ``LMFO''
expansion of ``affected property owner'' for LMFOs > 2,000
AU to 2 miles
holds LMFOs liable for proper disposal of animal waste
regardless of who disposes of it
limits the facilities that must meet liner requirements
and document ``no hydrologic connection'' to only those that house
animals in a roof-covered structure (i.e., exempts most cattle)
requires Odor Abatement Plans for all LMFOs
OWRB annual report of swine facilities with ground water
permits
OWRB will define ``nutrient-limited watersheds'' and
``nutrient-vulnerable aquifers'' in WQS
LMFO lagoons designed for odor abatement, groundwater
protection, and nutrient conservation
redefines rule advisory committee for more general public
and environmental representation
substantially increases fines and penalties for violations
of the Act
establishes a ``Violation Points System''
requires certain records to be kept as long as the
facilities are in operation
requires certain records to be kept of animal waste that
is removed from the operation
limits who can certify ``no hydrologic connection'' to
licensed P.E.s or NRCS engineers
300 foot land application setback from ``public or private
drinking water wells'' remains
Senator Chafee. Senator Thomas.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you, Mr. Chairman, for holding this
oversight hearing. As one of the members who requested the
hearing, I appreciate the opportunity to examine the Clean
Water Action Plan, especially since the initiative was created
without the input of Congress, nor was it subject to
assessments under the National Environmental Policy Act.
I'm especially pleased to have the Secretary of Agriculture
and the Administrator of EPA with us today. I want to welcome
the other witnesses of our second panel. Certainly having two
witnesses from Wyoming emphasizes the importance of this issue
to my State.
Mr. Chairman, none of us would disagree with the importance
of improving our Nation's water resources. In Wyoming, the
tourism industry depends on pristine environment. We have
streams that boast world class trout fishing, so it's
imperative that we protect our water.
Let me be very clear on this. I support the efforts to
improve water quality, but I have substantial concerns with the
Administration's approach to the problem. As many of you know,
I strongly oppose the use of Executive orders to launch efforts
as broad and overreaching as the Clean Water Action Plan. It is
essentially 111 ``key actions'' affecting Federal agencies and
State and local governments. Since the Clean Water Act leaves
non-point source largely unregulated, I believe this committee
needs to ensure that the Action Plan does not become a
mechanism for agencies to overstep statutory authority.
In addition, I question whether the Clean Water Action Plan
truly targets the problem it is intended to solve, reducing
non-point source pollution. The justification for the plan is
based upon EPA's own National Water Quality Inventory, which is
a summary of States' 305(b) reports. Scientific assessment by
the U.S. Geological Survey have indicated the National Water
Quality Inventory is so severely flawed and scientifically
invalid that it could not be used to summarize water quality
conditions. The problem with the Inventory is the States use
different measures to determine water impairment, but yet data
is compiled into one report, a report that is somehow supposed
to summarize the status of the Nation's waters. To me this
comparison makes little sense.
Earlier this year, GAO released a report that criticized
EPA's assessment of non-point source pollution problems.
Specifically, GAO highlighted concerns relating to No. 1, how
the agency identifies waters polluted by non-point sources; No.
2, the need for more data to develop cost estimates; and No. 3,
the extent to which the Federal Government contributes to water
pollution. Further, GAO cautioned the methodology used in
determining both water impairment levels and impacts from non-
point source in that this study was underfunded and
consequently the results are possibly inaccurate.
These findings trouble me greatly. I understand the
challenge Federal entities have in allocating limited financial
resources. However, it seems to me that if the goal is to
improve water quality with the Clean Water Action Plan, they
should first have accurately identified the cause of the
problem. Without using sound, credible science to assess the
health of our waters, how can we be sure the initiative and the
taxpayers' dollars to support will reduce pollution. We already
have programs in place such as the Clean Water State Revolving
Fund that successfully reduced pollution problems and, in my
view, the Administration's proposed budget cut does little to
promote clean water.
What is the harm in wanting to know the scientific basis
for an action plan and, more importantly, why is this request
deemed somehow being opposed to cleaning up our environment.
After collecting scientific data, if non-point sources are
found to be a significant obstacle to clean water, then I urge
the Congress and the Administration to make funding for
voluntary and incentive-based programs a priority, as was done
with point source to assist landowners with pollution reduction
efforts.
My interest in today's hearing also encompasses financial
burdens being placed on the State and local communities,
individual landowners. This issue is not unique, of course, to
Wyoming. I'm concerned that States are spending their time and
resources complying with the ``key actions'' called for in the
Plan instead of protecting water resources.
Again, my belief is these types of problems are best dealt
with at the local and State levels rather than federally
mandated. Certainly we all have a responsibility to improve
water quality. The question is the approach.
I hope we don't spend our time talking about the value of
water quality. We all recognize that. The question is how do we
best do it.
Thank you, Mr. Chairman. I look forward to hearing from the
witnesses.
Senator Chafee. Thank you very much, Senator.
We welcome our two witnesses. It's my understanding that
neither of you have time urgencies?
Mr. Glickman. Mr. Chairman, I have a doctor's appointment
and I need to leave about 11:15 a.m.
Senator Chafee. OK. We will definitely get you out of here
by then.
I will start with Administrator Browner.
STATEMENT OF HON. CAROL BROWNER, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY
Ms. Browner. Thank you, Mr. Chairman.
I want to thank you and the members of this committee for
the opportunity to appear before you again.
The issue that we are here to discuss today is the Clean
Water Action Plan announced by President Clinton and Vice
President Gore in February of last year. This Action Plan is a
comprehensive blueprint for restoring and protecting the
Nation's water resources. It truly charts a course for
fulfilling the original goal of the Clean Water Act, fishable
and swimmable waters for all Americans.
Over the past quarter century, America has made tremendous
strides in cleaning up its rivers, lakes and coastal waters.
The Clean Water Act in particular has prevented literally
billions of pounds of pollution from entering and fouling our
Nation's waters and doubled the number of waterways that are
today safe for fishing, swimming and recreation.
In addition to the environmental and health benefits that
we have enjoyed because of the Clean Water Act, restoring these
waters has also generated jobs and economic growth, growth in
recreation, tourism, and the commercial fishing and
shellfishing industries. The vast majority of Americans today
choose for their vacation a water resource, bringing to those
communities the kind of investments and economic prosperity
that is so important to all Americans.
Despite all of our progress in addressing the water
challenges of this country, about 40 percent of the Nation's
waterways that have been assessed--I think it is important to
recognize that not all have yet been assessed--but that have
been assessed by the States are still unsafe for fishing and
swimming.
I think it is fair to say that what we have done thus far
are very big steps but in many ways it is the easier things
which we have addressed. As you said, Mr. Chairman, finding the
point source is far easier than finding and dealing with all of
the polluted runoff or the non-point sources.
Pollutions from factories and sewage treatment plants have
been dramatically reduced as we have gone about our business of
focusing on point sources and we're doing a better job of
protecting our wetlands from loss and our soil from erosion.
Now what we need to do, based on the work of the last 25-30
years, is to focus our attention on the runoff, runoff that
comes from our city streets, our rural areas and other sources
and that results in the continuing challenge of the pollution
and the degradation to far too many rivers, lakes and coastal
waters.
To fulfill the original goals of the Clean Water Act, we
need to chart a new course to address these kinds of pollution
problems and that is why the Administration put forward the
Clean Water Action Plan. With this detailed plan, we give our
States, tribes and communities the tools, the resources they
need to strengthen public health protection, to aid community-
based watershed protection efforts, and to provide new
resources to control polluted runoff.
The Action Plan was developed through a cooperative
effort--EPA, USDA, other agencies, the Department of Interior,
the Army Corps of Engineers, NOAA and the list goes on and on.
We also received extensive input from State and local
governments as well as agriculture, environment, industry and
other stakeholders. Together, we are working smarter, we are
avoiding duplication and we are getting the most out of the
programs and resources.
The pollution problems affecting our waters vary greatly
from region to region and from watershed to watershed. A one-
size-fits-all approach will not effectively address these
issues, we agree. Therefore, a watershed approach to
implementing the Clean Water programs is at the heart of this
action plan. It literally puts in place the mechanisms and the
tools to address the remaining water pollution problems,
watershed by watershed.
The plan lays out a vision of local leadership in watershed
restoration and protection. It calls on the Federal agencies,
State, tribal, local governments as well as the private and the
public sector, to target efforts to the particular needs of the
individual watershed, to assess the full range of clean water
problems and to identify the solutions that will work best for
that specific watershed.
Successful models of public-private partnerships for
watershed management can be found all over the country. This
plan is literally built on successes across the country. In
small places like the Guess River in Virginia, the Upper Salt
River Basin in Missouri to the large watershed such as the
Chesapeake Bay, the Great Lakes, and the Everglades.
Although we have completed only 1 year of this plan,
already a great deal has been accomplished, if I might just
quickly mention a few things.
Each of the 50 States, the territories, the District of
Columbia and 76 tribes have now completed unified watershed
assessments. They are now building on that and developing
watershed restoration action strategies that will allow them to
focus and guide their efforts and the efforts of all within
their State to restore these waters. In addition, they are
developing work plans to qualify for the new $100 million which
Congress provided through section 319 funds to support
watershed restoration action strategies.
To respond to environmental emergencies, we have created an
Interagency Emergency Response Plan that can coordinate Federal
assistance to State and local governments. We hope these things
don't occur but for example, the outbreak of pfysteria,
bringing together all of the Federal agencies with the
expertise, with the know-how was extremely important to
addressing that problem.
An action plan for beaches and recreational waters has been
issued. It was issued just this last March by EPA. This plan
complements legislation that was recently passed by the House
of Representatives and I think is under consideration in this
body and outlines the agency's multi-year strategy for reducing
health risks to recreational water users through improved
recreational water quality programs, pollution alerts and
scientific research.
For the last year in which we have information, there were
over 4,000 beach closures in the United States. Clearly
focusing on this issue and focusing on these resources is an
extremely important part of how we go about addressing the
remaining water pollution problems that the people of this
country face.
USDA and EPA have also cooperated in the development of the
Animal Feeding Operations Strategy to control polluted runoff
from cattle, dairy, poultry and pig farms. The Strategy is
aimed at reducing pollution while ensuring the economic health
of our farmers.
The Watershed Information Network is now up and running on
the Internet and accessible to the public as a prototype. It
can provide communities with the information they need to help
them make the decisions about how best to protect and restore
their local waterways.
This Plan, the Clinton-Gore administration's Clean Water
Action Plan, provides a vision for a future of clean, healthy
water and a map that shows us how we can best get there. By
focusing on restoring and protecting watersheds, we can more
effectively implement clean water programs. By continuing to
support locally-led partnerships across all levels of
government and the private sector, we can nurture a sense of
shared stewardship of our Nation's waters.
Again, we appreciate the opportunity to be here today, to
continue to work with you, Mr. Chairman, Senator Baucus and the
members of this committee as we complete the task of providing
to the American people clean, safe, healthy water.
Mr. Chairman, if I might just again thank you for the
leadership you have provided for so many years and particularly
the work that you have done going back to the Clean Water Act
amendments of 1987 in terms of strengthening the Nation's
public health and environmental laws.
Thank you.
Senator Chafee. Thank you very much, Administrator Browner.
I think we will reserve the questions until we have the
testimony from both.
Senator Baucus, do you have any comments you'd like to make
now?
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Just very briefly, Mr. Chairman.
I very much appreciate both the Secretary and the
Administrator being here.
Obviously it is a very important subject and we need to
take a unified watershed approach. I hope that the Action Plan
that is being contemplated does that.
We are also going to have to have a coordination among
relevant agencies and I'd be interested to hear from the
administration and their comments on how to make that happen.
Obviously it's better to use existing resources rather than
duplicate efforts.
I also might say that some States are taking action on
their own which has to be recognized. For example, in my State
of Montana, we have a streamside management zone that is set up
for timber harvest to address runoff from timber harvesting. I
hope the Action Plan takes those State plans into consideration
and allows States to have the flexibility that is needed and
recognizes the actions States are taking.
Thank you, Mr. Chairman. I do look forward to hearing more
about the Plan and the opportunity to probe it a little more
deeply.
Senator Chafee. Thank you, Senator Baucus.
Senator Crapo, do you have any comments you'd like to make
now?
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you, Mr. Chairman.
I briefly wanted to thank the chairman for holding this
hearing. We are finding that the implications of this plan and
the actions that will be required under it are critical and
potentially have far-reaching impacts in our State as well as
in other States that I'm aware of.
We appreciate this opportunity today to closely review
these issues and thank you for holding the hearing.
Senator Chafee. Good. I hope you will be able to stay for
the balance of the hearing.
Mr. Secretary, we are delighted to have you here. We don't
often have an Agriculture Secretary before us. I can't remember
since I've been on this committee when we have had an
Agriculture Secretary, so I can clearly say you're the best
Agriculture Secretary that's appeared before us.
[Laughter.]
Mr. Glickman. And you're the best chairman of this
committee I've ever testified before.
[Laughter.]
Senator Chafee. Thank you very much.
With all those kudos, why don't you proceed?
STATEMENT OF HON. DAN GLICKMAN, SECRETARY,
DEPARTMENT OF AGRICULTURE
Mr. Glickman. Thank you very much, Mr. Chairman.
I want to echo Carol's comments about your leadership on
environmental issues. I want to thank Senator Baucus, Senator
Thomas and Senator Crapo for their friendship and help as well.
I'm going to try to summarize my remarks because I assume
my entire statement will appear in the record.
Let me first talk about coordination. Historically, the
role of EPA and the role of USDA were often viewed as very
serious adversaries. There are an awful lot of folks out in the
country who still to this day see agriculture and the
environment as inconsistent with each other. I don't think
there is any question that under this Administration, we have
done I think an excellent job of coordinating our respective
statutory responsibilities, recognizing that there is nothing
inconsistent with good stewardship of the land and good
environmental protection.
The economy and the environment are compatible, can work
together. Largely under our programs, through voluntary
efforts, we are doing that and it is much more comfortable than
it was 10, 15 or 20 years ago about that cooperation that
exists.
With respect to the Clean Water Action Plan, the President
and Vice President instructed EPA, USDA and the other Federal
agencies to work together to continue the progress in water
quality. We have done that in the areas of our jurisdiction. We
obviously have a great jurisdiction when it comes to the Forest
Service because we manage the forestlands and most of the head
waters of the country comes out of the U.S. Forest Service
activities. So that is a key part of our efforts.
In addition, the Natural Resources Conservation Service, in
coordination with all the conservation districts around this
country, help to guide the stewardship of our private lands. I
think 72 percent of the land in this country is held in private
ownership, and helping folks deal the best they possibly can
with the stewardship of their water is something that is very,
very important to deal with in terms of the NRCS activities.
Sound environmental practices such as conservation buffers,
conservation tillage, forest management, integrated pest
management, health improved water quality, soil health,
wildlife habitat, keeping our agricultural and forestlands
economically productive, economically sustainable, and keeping
our farmers globally competitive, our farmers, ranchers and
foresters.
In addition, we have worked together with EPA and jointly
held 11 national listening sessions to discuss the draft
strategy concerning the animal feeding operations. Most of
these sessions were co-chaired by USDA Deputy Secretary Rich
Rominger of California, Under Secretary Jim Lyons, who is
sitting right behind me. We also managed a hotline for the
public to receive clarification about the draft strategy. We
received about 1,800 comments on the Animal Feeding Operation
Strategy from the public, written comments, in addition to
about 300 oral comments.
In addition to the Forest Service's present investment to
improve watershed health on the national forests, the fiscal
year 2000 budget includes refunds to accelerate maintenance of
needed national forest roads, the obliteration of roads are no
longer essential for rural commerce or administrative or
recreational activities and the Forest Service will be central
to developing a unified Federal policy for managing watersheds
administered by all Federal land management agencies. A draft
of this policy is currently being prepared for publication in
the Federal Register.
NRCS provides extensive technical and financial assistance
to farmers, ranchers and rural communities on water quality and
quantity issues. It has an incredible field structure working
with landowners providing technical assistance through the
Small Watersheds Program, the EQIP Program, Environmental
Quality Incentives Program, Wetland Reserve, RC&D Program, all
of which are in your States. In addition to that, USDA has
enrolled over 30 million acres in the CREP, the Conservation
Reserve Program, which idles farm land for 10 to 15 years,
creating valuable wildlife habitat among other amenities.
We have also established a new program called the
Conservation Reserve Enhancement Program which establishes a
Federal-State partnership to encourage farmers and ranchers to
remove sensitive lands from agricultural use in Oregon and
Washington. That plan is to provide streamside buffers critical
to water quality and salmon protection.
In Maryland, we're focusing on the Chesapeake Bay. We
focused on Illinois, Minnesota and in all there are seven CREP
programs in place. Several others are under development.
With respect to the Clean Water Action Plan, first, let me
mention as it applies to private lands, the Clean Water Action
Plan emphasizes voluntary approaches to solving problems. A key
component of the strategy we at USDA have used since the dust
bowl era of the 1930's, to assist farmers and ranchers in
conserving our natural resources.
When we vary very far from the voluntary approach, we
usually get a lot of blood pressure out there in the
countryside. We've talked about this over the years. I, myself,
talked about it when I was on your side of the aisle when I
used to deal with the Administration on a variety of issues.
The fact is we're most effective at USDA when we pursue and
promote voluntary practices. In fact, for that reason,
generally speaking, the public believes very strongly that our
cooperative conservation practices are of great, great help to
them.
In addition, the Department's natural resource conservation
and environmental protection activities will continue to
involve the public through locally-led conservation including
people at the local level to identify various private, local-
State funding sources that would help them meet their goals.
For example, the community of Squaw and Baldwin Creeks,
Wyoming, I know Senator Thomas is well aware of that,
exemplifies the meaning of locally-led conservation. The Squaw
and Baldwin Creeks contributed significant amounts of silt and
nutrients to the Popo Agie River. Primarily due to the
subdivision of large grazing areas into small ranchettes, the
resulting concentration of livestock caused the stream banks to
become badly eroded and storage capacity at the reservoir was
greatly reduced by sedimentation and trout habitat was
degraded.
Using locally-led conservation efforts, this watershed
rehabilitation project began in 1990 installing erosion and
sediment control conservation practices, restoring stream,
repairing habitat and improving grazing practices. They have
improved the irrigation and fishery capabilities in the
watershed and the restored natural, meandering pattern of the
creeks.
These experiences, and there are many others like them,
when people were first very skeptical of this project but when
they saw the water getting clearer, demonstrating the voluntary
efforts of local people who understand the natural resource
needs of their communities, they liked the project. We believe
these experiences can continue elsewhere in the country.
Mr. Chairman, I'd like to make a couple of other quick
comments. In response a bit to Senator Thomas, we have made
funding for voluntary programs a priority at USDA. For example,
we have asked for $300 million for the EQIP Program in fiscal
years 1999 and 2000. Congress did not provide the full amount
that we requested, but provided about $174 million for EQIP
which was a cut of $26 million from fiscal 1998.
I mention this because the EQIP Program is the heart of our
technical assistance program to provide voluntary compliance to
farmers and ranchers who need the help. The primary focus of
the Clean Water Action Plan as it relates to USDA and EPA is
voluntary nutrient management planning. The best way to do that
is to have the technical resources and people out in the
countryside who are able to help farmers and ranchers meet
their needs.
Our key role in this area is providing technical and
financial assistance to landowners based upon local
conservation needs, with local leadership on a voluntary basis.
I think because of that, we have become a lot more successful
than we used to be in dealing with the problems.
Thank you very much, Mr. Chairman.
Senator Chafee. Thank you very much, Mr. Secretary.
Let me ask you the following. Whether we like it or not,
the agricultural operations in the United States, it's my
understanding, are becoming bigger and bigger and more
concentrated, in other words mammoth swine herds and cattle and
poultry operations. From these you get a farmer, I presume and
you can help me out on all this, the manure that he recovers
and seeks to spread on his fields is too great for what the
fields can absorb. In other words, he's got so many swine or
whatever they might be that the fields can't take it. What do
we do in a situation like that? How do you handle that?
Mr. Glickman. First of all, you are correct in your
assumption. That is, we've seen, particularly in the livestock
industry, a very rapid consolidation in beef, poultry and pork.
There are significant, even monumental, environmental problems
associated with this what some would call the industrialization
of agriculture where you feed large, large numbers of animals
in confined areas. This is not to say whether it's good or bad;
it's a fact. It's happening and it's happening with respect to
the raising of almost all animals in this country.
The States have created nutrient management programs and
manure management and runoff programs both of water and waste
and that's one of the reasons why the EPA has been designated
as the lead to try to develop some national standards,
hopefully voluntarily imposed in most cases--imposed is
probably not a very good word--voluntarily encouraged, in order
to deal with this problem.
In addition to that, our Agricultural Research Service is
actively from a research perspective on ways to convert that
waste into productive things, compost, fuels, all sorts of
other things to deal with the fact that there may be other uses
for these particular products.
You are talking about significant problems, runoff is
significant and it's one of the reasons why the Clean Water Act
has provided, we believe, the authority for the Clean Water
Action Plan to take place.
Senator Chafee. Ms. Browner, I'd like to address the issue
of abandoned mines. It's my understanding that in some States,
50 percent of the water impairments are adversely affected by
acid drainage from abandoned mines. The EPA has estimated the
Federal liability for abandoned hardrock mines on Federal lands
is a whopping $4 billion. What can we do about this? Obviously,
in many Western States, the Federal land is a very significant
portion of the total.
Ms. Browner. Mr. Chairman, you're exactly right. The issue
of abandoned mines or improperly closed mines creates a number
of problem, significantly water pollution problems. These mines
can create an opening, if you will, that can contribute to
groundwater contamination and even in some instances, because
the groundwater connects to surface water, a river or lake
contamination.
The numbers are quite large. We would certainly look
forward to the opportunity to work with this committee or any
other committees to develop legislation, perhaps good samaritan
legislation, that would allow parties who are willing to take
the steps to close these, to provide the safeguards, to do so
without any kind of adverse liability.
I don't think this solves the entire problem by any means
but I think it could be helpful in terms of encouraging people
to take some reasonable steps that they are pretty much
inclined to take but are worried about accepting liability when
they take those steps.
Senator Chafee. It's my understanding Arizona and Oregon
attribute 50 percent of their water quality problems to non-
point source pollution from Federal lands?
Ms. Browner. I think that is an accurate figure. I'm sure
it is. I don't think all of that is coming from mines but from
other activities.
Senator Chafee. Probably not all from mines, no.
Senator Baucus.
Senator Baucus. I want to first underline the point you
both made very well about the need and also the progress in
coordination between the EPA and USDA. You well know that a lot
of farmers and ranchers, USDA is OK but EPA is another matter.
The more you can work together and EPA take some of the cues
from USDA as to how they have good relations. One frankly, Ms.
Browner, is something that you have a hard time solving and
that's the number of personnel. There's a lot of USDA personnel
on the ground and in the field. They are there, know the people
and over time have built up relationships, have cups of coffee,
their kids go to the same schools and that kind of thing. But
there are so few EPA personnel on the ground, the perception is
those are people out of State, that they are in Denver or
Washington making these decisions rather as locals.
I really urge you to keep working on that and develop that
trust. I commend you for the efforts you have made thus far.
How are the States going to pay for this? I don't
understand how States are going to pay for it.
Ms. Browner. They are eligible, for example--all 50 States
have completed their unified watershed assessments--that then
makes them eligible for the new $100 million that Congress
added to section 319. That program had previously been funded
at $100 million and it is now at $200 million. We are asking
Congress in this year's budget to continue that. That money
will be available. It's a State formula and we do anticipate
every State will qualify for those resources.
In addition to that, we provide other grant monies to the
States and we are asking Congress to permit the States, if they
so desire, to take up to 20 percent of their State Revolving
Fund money and turn that into grants for local communities and
for local efforts. In no way do we suggest that the challenge
of wastewater sewage plants doesn't continue but when we look
at the impacts on our rivers and lakes and the health of our
rivers and lakes, we think it would be important to give States
this additional funding flexibility. So we are asking for that
in this year's budget.
Senator Baucus. Some of the witnesses on the second panel I
think are going to voice their concern about inadequate
information in determining what water bodies are impaired, that
the data is not that reliable, that there is not enough out
there really to know. Is there more money for the U.S.
Geological Survey, for EPA or the States to conduct more
monitoring to get better data?
Ms. Browner. Yes, there is.
Senator Baucus. How is that going to happen?
Ms. Browner. If I might say, it's important to remember
that it is the States who make these determinations, who make
these designations in terms of what is impaired or what is not
impaired. For example, I'm sure Senator Thomas is keenly aware
we worked very closely with Wyoming and in the initial review,
looked much broader and in fact, now it's a smaller number of
water bodies the State believes are impaired.
What we are trying to do is work with each of the States to
make sure that they have the tools they think are important in
terms of the kind of assessments of water bodies they need to
do. There is funding available. Section 106 funds are available
to States to do the kind of research and monitoring they need
to do to make sure these reports are accurate.
Senator Baucus. Secretary Glickman, some of the cattle
operators are concerned how all this will affect offsite manure
management, that is many operators will sell the manure to a
third party who hauls it away, uses it himself or sells it.
They are concerned that they might be liable for how manure is
used once it leaves their operation. How is that being handled?
Mr. Glickman. I'm not aware there is any third party
liability involved here. I'd have to think about that
particular issue. Maybe that will come up in the next panel.
That's one of the reasons why we need to look at this on a
watershed basis, just on a ranch by ranch, farm by farm basis
so there are some kind of general standards across the board.
One thing I'd like to mention quickly on the issue of
funding is one of the things we find most in agriculture is
that program funding is great but what folks really need is the
technical assistance as to how to comply, how to do the basics
in terms of the practices, tillage practices and those kinds of
things.
I want to put in another plug for those technical
assistance dollars particularly in the NRCS budget. The
supplemental that I think you were all dealing with last night,
I think you did put in enough assistance so we could provide
technical assistance for the CRP Program. We were having to cut
back on the NRCS technical assistance on CRP. Having those
human beings out there in the countryside, the ones you just
mentioned, makes a big difference in peoples' lives in order to
comply voluntarily. I hope we can keep those people out there.
Ms. Browner. If I might add to that, I think one of the
great areas of agreement between EPA and USDA is the
comprehensive nutrient management plans. This goes to the issue
of manure application. We recognize at EPA that USDA has the
relationships with the farmers, they have the technical
expertise and they will be taking the leadership and working
with farmers who do use the manure from these larger facilities
to ensure that it is applied properly.
The issue for us from the EPA perspective is not the farmer
who wants to enrich their soil and grow better crops with
manure, it's these very large facilities. In the Delmarva
Peninsula, the poultry operations now produce as much waste as
the Washington, D.C., Virginia, Baltimore metropolitan area. We
all would agree that waste from the sewer plants should be
properly managed. When you look at the volume of wastes that
are coming not from the small farmer but from the sort of
industrial facilities, the issue is simply the appropriate
management. It is not the farmer who rightly takes advantage of
applying manure so they can grow.
Senator Baucus. I understand and I think people agree. I
think most operators just want to make that clear.
Ms. Browner. That's why having USDA do the plans with the
farmers I think actually is one of the real sensible things in
this program. They have the expertise, they have the
relationships. We know that.
Senator Baucus. Thank you.
Senator Chafee. Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman.
I thank both of you for your comments. If one just flew in
from Mars and listened to you, they would think everybody was
on board. That's not the case, as you know. There's substantial
amount of concern in the country and I have a number of
letters, you have a number of letters, I'm sure, and there
indeed will be some lawsuits filed as a matter of fact.
Specifically, Secretary Glickman, you mentioned the one-on-
one assistance which I certainly agree with, yet your budget
for 2000 proposes substantial cuts in field services. This
discrepancy between the field staff will be lost, between OMB
numbers and NRCS calculations, is 200 from OMB and 1,000 staff
members from NRCS. How do you reconcile those two things?
Mr. Glickman. Part of this was because there is a cap under
section 11 which funds the technical assistance programs like
CRP. With that cap, we couldn't ask for additional money to
provide some of that technical assistance. Hopefully, working
with you all and with OMB, we'll be able to.
Senator Thomas. But you're reducing it, not just keeping
the cap. Why would you reduce it when you tell us how important
it is to have NRCS out there in person?
Mr. Glickman. I'd like to eliminate the cap, myself.
Senator Thomas. I'm not talking about the cap; I'm talking
about reduction of 1,000 which is the number that comes from
your agency.
Mr. Glickman. One of the reasons is the cap but I would
have to tell you we're talking about reductions across the
board at USDA in FSA operating staff and everything else. When
you come up with these budgets, we couldn't exempt one part of
the group from the whole thing.
Senator Thomas. I understand but this is part of the
difficulty. You all come up and talk about these things and in
the next paragraph, well, we're not going to do that because of
caps and so on. Those things are difficult to take to the
country.
Ms. Browner, you've indicated in the past that you thought
there was sufficient authority for the action plan?
Ms. Browner. Yes.
Senator Thomas. Yet I understand you went to the
Subcommittee on Appropriations and asked that the subcommittee
members provide authority in the 2000 appropriations bill to
enable EPA to implement the projects?
Ms. Browner. That's not what I was seeking. I can explain.
I just mentioned it previously which is we are asking the
appropriators to allow the States to take 20 percent of the
money they receive and transfer that from the Revolving Loan
Fund Program into a grants program. It's not a question of
legal authority; it's a question of giving the States greater
flexibility in how they make use of their funds.
Senator Thomas. That's not what it says in the ``Inside
EPA.''
Ms. Browner. Inside EPA is a private publication; it is not
owned by the Environmental Protection Agency.
Senator Thomas. I understand that but they are wrong
because they're private?
Ms. Browner. No. I know what I said. They're wrong because
I know what I said.
Senator Thomas. I see. Let's see what the committee says.
Tell me something else then, the Gore plan was put into
place in 1997 and you've conducted apparently some listening
sessions. Did you solicit public comment?
Ms. Browner. Are you referring to the Clean Water Action
Plan discussed in February 1998?
Senator Thomas. Yes. It stated in 1997, I believe. You were
asked to put it together.
Ms. Browner. Yes. There were listening sessions.
Senator Thomas. No, I'm not talking about listening
sessions. I'm talking about NEPA kinds of--after your plan was
out there did you solicit and have a time for public comment?
Ms. Browner. The keeper of the NEPA statute, the CEQ,
Council on Environmental Quality, has responded I think to this
committee's questions as to whether or not NEPA would apply to
this plan. They do not believe that NEPA does cover this plan.
Senator Thomas. You did not have a public comment period
after the plan was announced?
Ms. Browner. This plan is not covered by NEPA. That is what
CEQ has determined, it's not covered by NEPA.
Senator Thomas. My question is, did you have a public
comment period?
Ms. Browner. There's been a tremendous amount of public
input in the creation of this document.
Senator Thomas. You did not have a public comment period?
Ms. Browner. This plan is not covered by NEPA.
Senator Thomas. That's not what I'm asking you,
Administrator. I don't know that I accept that but even if you
do, this is a pretty major Federal action. Did you have a
comment period?
Ms. Browner. It's not a Federal action, with all due
respect. It's a blueprint laying out a series of proposals and
actions. Any one of those which will result in any ``Federal
action'' in the legal sense is obviously subjected to all of
the requirements, notice and comment, publication in the
Federal Register.
So, for example, the work that we've all been doing on the
CAFOs and AFOs, has been in keeping with all of those
procedures, but this plan, in and of itself, is simply a
blueprint that lists the Administration, in conjunction with
lots of other peoples' best thinking on what are the steps that
would need to be taken. Any individual step would have to play
in accordance with all of the legal requirements.
Senator Thomas. Thank you but you did not have a comment
period then for the Plan? It's a pretty simple question. Did
you have a comment period after the Plan was announced?
Ms. Browner. The Plan is the subject of extensive outreach.
Senator Baucus. If I might jump in here, at my peril, there
have been at least 11 public hearings all over the country.
Senator Chafee. On the Plan, I think the question is kind
of a yes or no.
Senator Baucus. People have commented to those public
hearings.
Senator Thomas. I understand that but I have a fairly
simple question, whether or not there was a comment period when
the Plan was issued. The answer is no.
Senator Baucus. I don't know.
Senator Chafee. Is that correct, Ms. Browner? You have a
plan out there with 111 recommendations.
Ms. Browner. Yes.
Senator Chafee. Senator Thomas says did you have a hearing
and what are you saying, you had a hearing on each one of the
subjects, the 111?
Ms. Browner. As each of those would go forward into an
implementation phase.
Senator Chafee. Will go forward in the future?
Ms. Browner. Yes, they would be subject to whatever
requirements of the law there are. So for example, the best
example right now would be the CAFOs and the AFOs for which
there have been hearings, there's been notifications. All of
that has been done in accordance with the requirements.
I think what the Senator is attempting to suggest is that
the Plan, in and of itself, is a ``Federal action, a
rulemaking,'' and therefore should have been subjected to a set
of procedural requirements. We do not believe that is the case.
We believe that individual actions will be, in some instances,
subject to all of that and we will follow all of that. Having
said all of that, I want to be very clear, the amount of public
involvement and public input in this document was extensive.
Senator Chafee. OK. Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman.
I'd like to follow up on that in one context. If I
understand what you're saying, Administrator Browner, the Clean
Water Action Plan has nothing new in it, there's no new binding
regulatory authority involved?
Ms. Browner. Correct. It is not, in and of itself, self-
executing. Any requirement that could be placed on any industry
to reduce their pollution would be subject to all of the
procedural requirements of the Act.
Senator Crapo. So we have your assurance that if there are
any new requirements that will result from the Plan----.
Ms. Browner. Any regulatory requirements, that's correct.
Senator Crapo. [continuing.] . . . there will be complete
NEPA compliance?
Ms. Browner. No. Clean Water Act compliance. That's a good
question. I don't know, and I'll be honest with you, is there
anything in here of the 111-plus steps that might, in and of
themselves, be subject to NEPA. I think the question that was
posed by the committee previously was, was the Plan itself
subject to NEPA? In terms of the individual actions, I am happy
to have CEQ respond to you with respect to that. I just don't
know the answer to that.
Senator Crapo. I'd appreciate that. I would expect that
most of them, if they're going to be major new changes in
regulatory policy, would require NEPA compliance. Would you not
expect that?
Ms. Browner. No, NEPA doesn't cover all changes in
regulatory policy. For example, in the work we're doing under
the NPDES permit with respect to the large, industrial,
agricultural facilities, I don't think anyone is of the opinion
that would be subjected to a NEPA review. It will be done in
accordance with the Clean Water Act requirements.
Senator Crapo. I would like the CEQ to respond.
Ms. Browner. We can ask them that question for you,
certainly.
Senator Crapo. I'd also like to talk with you about the
question of flexibility. In the first paragraph of your written
testimony, you indicate that a one-size-fits-all approach is
not the right approach. Both of you have testified today about
the importance of flexibility, watershed approaches and so
forth. That all sounds very good.
The concern that we are picking up from those out in the
country who are dealing with this, whether at the State or
private levels, is what they are seeing and what they are
finding is the opposite, strong concerns about one-size-fits-
all rules and the failure to take into consideration as this
proceeds, the various differences in geography that can impact
dramatically.
I'm thinking myself right now about the CAFO and AFO
situation where Idaho has 15 or 20 inches of rainfall and other
States have much more rainfall, and you have a difference
between arid climates and other types of climates which does
not seem to be taken into account at all.
The question is, we can agree in this room and can all talk
about the importance of flexibility and not having one-size-
fits-all requirements, but how do you have a national standard
that is developed that then has to be met in individual
watersheds without having a one-size-fits-all approach?
Ms. Browner. The States will manage the permitting of the
facilities and as is true under existing water quality
permitting programs managed by the States, they will take into
account the special needs of their State. You mentioned, for
example, the geological formation. I'll give you a good
example. An example might be that in one State, a facility can
be constructed in such a way so that it is ``zero discharge,''
but that exact same construction in another State, because they
have different soil, would not be zero discharge. That is what
the permitting process your State will manage is designed to
speak to.
Senator Crapo. So do I understand you to say that the
States will be able to apply the standard as flexibly as they
can or can the States design the standards?
Ms. Browner. Excuse me for 1 second. Because your State is
in a slightly different situation, your State has never--as I
understand it, most of the States here manage their water
quality permitting, we have delegated that authority to them. I
think there are seven where that has not occurred for any
number of reasons. We just completed Texas, a very large State.
Your State does not have it. We'd love to work with them on
delegating it to them and then they would actually be the
permitting agency.
However, we will, if we continue to be the permitting
authority, as we are today in your State, obviously take into
account the local concerns. We would work with the State agency
even though they cannot actually legally issue the permit. The
far better way to resolve this would be if we could work with
your State to take control of the program.
Senator Crapo. I'd like to see that move ahead as well and
see Idaho given that delegation, so I'd like to do whatever I
can to work with you in that regard.
When that arrives and in the other States when that is done
the question still exists to me, if the State is simply being
allowed to implement an already rigid, one-size-fits-all set of
rules, that doesn't really get you flexibility just because
you're allowing the State administrators to be the ones who
make the decisions that are already predetermined or at least
preguided by very rigid structures.
Ms. Browner. Let's go back to my example. I'll pick my home
State of Florida. We have very different soil types than your
State of Idaho. You could construct a facility, one of these
large, industrial, agricultural facilities in your State and it
would be zero discharge, it would not be required to have a
permit for discharge because it is not discharging and that
would in part be a function of both the engineering and
geological formations in your State. That exact same
construction project could move to Florida and because of their
soils, would require a permit.
There are many examples but that I think is a relatively
easy example of where State differences will come into play and
should. We absolutely agree they should come into play.
Senator Crapo. We're in an early enough stage of this where
it's hard for me to give you specifics, they aren't there yet.
I would like to work with you so that when we get to the final
analysis, you and I can agree that in fact we have reached a
point where the States are given that flexibility. It sounds
good and I'm glad to hear you talking in this way because there
is a lot of concern on my part and those who are dealing with
this at its initial stages that that is not how it will evolve.
Senator Chafee. We have to move on to the questioner in a
minute.
Ms. Browner. There are approximately, people estimate about
400,000 to 450,000 animal feeding operations. Working with USDA
and the States, we estimate that 95 percent of those will
simply work through best management practices on a voluntary
basis and will not require permits. It is only the very large
ones, 1,000 animal units, those that are located on impaired
water bodies which your State makes a determination about, but
the universe is not all of these facilities out there. It is
much smaller, about 5 percent of the facilities.
Senator Crapo. Thank you.
Senator Chafee. Thank you, Senator.
Senator Hutchison.
Senator Hutchison. Thank you, Mr. Chairman.
Administrator Browner, I have two areas of concern. The
first is one you and I visited about on the stormwater
regulations and the situation we have in my State where we have
counties that basically use vegetative overland processes and
they don't have ordinance-making power. They are very
concerned; in fact, so concerned that they formed a coalition
in Texas called the Stormwater Coalition because they are
panicked really.
Ms. Browner. We met with them. Did you know that?
Senator Hutchison. Yes. I know you met with them and they
said they took many of your people out to show them what they
were doing, but they didn't get feedback, they didn't get any
indication there was an understanding of their situation such
that they would be able to have some relief from the one-size-
fits-all regulations. If you have another view, I'd like to
hear it.
Ms. Browner. I obviously was not a part of the meeting.
Based on your request and your concerns and I'd also heard of
the concerns, we did ask people to go meet with them. Our
impression is that it was a helpful meeting.
One of the concerns you had raised to me was the question
of urbanized versus rural. I think we've worked through that
now and if there is any confusion left on that, Phase II is not
about the rural activities, it's about the urbanized areas of a
county not the rural areas of the county. I think that was a
big concern.
We also talked about grading of roads; that was another
issue that came up, sort of the maintenance grading of roads or
not changing the slope or the curve of the road, just
maintenance grading. That would be exempt which we think takes
out a lot of the concerns.
There were three issues. One was the geographic area
covered and the grading.
Senator Hutchison. Tell me how you are handling the issue
of urban versus rural?
Ms. Browner. I think that may have been, in part, a
confusion. If we need to fix it in the rule, we will fix it in
the rule. We are under the impression there was a
misunderstanding. The intent is not to cover the rural areas
and if there is an ambiguity, we're happy to go back and look
at the final rule as we complete the work on that.
The third question is a question we are still working on
and is a question very unique to Texas, and that is the
structure of your local government. For those activities that
would have to be taken pursuant to the Clean Water Act, the
question is where the responsibility and authority will rest,
and we are continuing to work on that.
Senator Hutchison. Yes, our counties don't have the ability
to actually regulate in that area, but many of these counties
don't use sewers, they use the vegetated ditches. One of their
concerns was that was not going to be exempt or that you
weren't going to take into account when that worked. Actually,
it is their understanding that in many cases, that has been an
acceptable process but under the rule, they were concerned they
were not going to be allowed to have that as an acceptable
process.
Ms. Browner. I think what they had sought, and maybe we
misunderstood them, was a complete exemption for all of that.
We don't disagree that there are instances where that is the
preferred solution and it works well. I think the concern we
have is simply exempting all of those. I think we have to
continue to work with them to come to an agreement on how you
would deal with those that we all could agree are working and
serve and are the sensible solution and then for those which
may not provide all of the pollution protection that is
necessary.
We don't disagree that in some instances that may, quite
frankly, be the right decision. I have to say I'm disappointed
if your report of the meeting is that it didn't go well. I did
check with people after our meeting. I asked them to go to the
meeting and I checked with them to find out how the meeting
went. They were under the impression that we had made some
progress. So if we need to go back, we will go back.
Senator Hutchison. It may be that there just wasn't a
communication of where they were going to have some relief from
the kind of one-size-fits-all, everything has to be underground
view of the regulations that they have. This is the comment
period and hopefully, the overland route will be acceptable
when it's acceptable.
Ms. Browner. If you can just convey to them, and we're
happy to do it again, that we felt we learned a lot and that
certainly reduced geographic coverage in terms of the rural
versus urbanized areas of the county, the grading of roads, the
maintenance grading of roads, and we want to continue to work
with people on the jurisdictional question.
Senator Hutchison. That's fairly rigid for us because we
just don't have ordinance-making for counties and it's very
jealously guarded by cities.
Ms. Browner. I think we would agree with you that obviously
there can't be a requirement for a body to do something if they
don't have the authority to do it. I think the issue we're
trying to resolve with the State right now is would the State
be the responsible entity.
Senator Hutchison. I'm sorry, it appears my time is up and
I thank you. I didn't get to get into the Clean Water Action
Plan and the issue of our feedlots and there are concerns both
by our livestock feeders, but also by our TNRCC, our State
regulatory agency about this plan. There is a feeling that
maybe the action plan is being substituted for regulations and
they are losing some of the emphasis on the Clean Water Act in
favor of the action plan.
There's a lot of concern but I'm going to have to go to the
mark-up of the supplemental appropriation, so I'm not going to
be able to stay but I will submit some of these questions in
writing, if you would permit me, to let you know of some of the
concerns.
Senator Chafee. OK. We promised the Secretary he could be
out of here by 11:15 a.m., so we have 5 minutes. We'll have
rapid fire questions of him before he goes.
I want to follow up on what Senator Thomas was asking about
the personnel. My records show that 10 years ago in
conservation operations, technical assistance for just the
thing we're talking about, you had 9,560 full-time equivalents.
The figure for the next budget is not 9,560 with these added
duties that would come on here but 8,769, a little less than a
1,000 drop. In watershed operations and small watershed
authorities, you had 10 years ago, 1,400 full-time equivalents,
now it's going down to 586.
I know you say that is due to the caps but yes, the caps
have come down, we recognize that, so you presumably have less
money overall. It seems to me, when you take some of these,
going from 1,400 to 586, that's a whale of a drop, about 60
percent, something like that isn't it? So you've got to get in
there and battle for these things.
Mr. Glickman. Senator, I can't argue with your numbers. I
was listening to Senator Thomas and the fact is that oftentimes
in our Government, and this is a bipartisan issue, we tend to
focus on program dollars rather than on people. When it comes
to a lot of the things we do at USDA, particularly the
conservation issues, these are not programs, these are human
beings out there helping folks do their job.
For a lot of different reasons, overall budgeting at USDA,
our total numbers are down as much as 15,000 people over the
last 5 years at USDA across the board. Maybe the focus hasn't
been enough on this particular aspect, which is the personnel
side of the conservation operation. I'm saying to you I don't
disagree with what you're saying.
Senator Chafee. Because it seems to me the programs that
we're selling here, one-size-doesn't-fit-all, we're going to
give the farmers technical assistance as well as some financial
assistance, and the technical assistance obviously is people.
Any other questions of the Secretary?
Senator Thomas.
Senator Thomas. Just a quick one, the road moratorium on
the Forest Service. You've had that, it's been in there by the
Forest Service. Now the water plan mandates the decommissioning
or obliteration of 5,000 per year by 2002. I don't understand
how these two things work together and I don't understand why
that's not some kind of a major action.
Mr. Glickman. Perhaps Under Secretary Lyons may want to
comment quickly on your question.
Senator Chafee. Why don't you identify yourself?
Mr. Lyons. My name is Jim Lyons. I'm Under Secretary for
Natural Resources and Environment at USDA.
Senator Thomas, some goals were set in the Clean Water
Action Plan and for it to be comprehensive in looking at the
various issues that affected clean water, and one, of course,
is roads and the issue of maintenance of roads. We set some
goals toward the development of a plan for decommissioning
roads that were no longer needed and also for maintaining the
roads that are needed.
We're proceeding with the road rule of which you're aware
that Chief Dombeck has put together and that will serve as a
basis for providing guidance in terms of future road management
and maintenance.
I'd say that the primary focus now really is in trying to
develop a final rule that will allow us to determine, working
with local communities, what roads we should maintain, which
roads are no longer needed for public transportation, access or
recreation use and then working to secure the funds to
decommission.
Senator Thomas. Does the water plan specifically as for
5,000 miles?
Mr. Lyons. The water plan I think set a goal of 5,000 miles
based on the preliminary estimates we had then. I think it is
probably fair to say, given the fact we have over 400,000 miles
of road, that's a fairly reasonable goal to set in terms of
decommissioning. The determinations are going to be made
through a process that involves local communities and forest
planning.
Senator Thomas. We just went through a process. We've just
had 18 months of moratorium and that was what it was for,
wasn't it?
Mr. Lyons. No. That was related specifically to the
construction of roads in roadless areas. We're in the process
now of developing a final rule for managing the transportation
system in the National Forest System. That will be finalized
sometime next year.
Senator Thomas. Will that be put out for public comment?
Mr. Lyons. Yes, sir.
Senator Chafee. Did you say you've got 400,000 miles in the
Forest Service?
Mr. Lyons. We think 400,000-plus.
Senator Chafee. So you take 5,000 out per year?
Mr. Lyons. Our goal was to eliminate 5,000 per year. We
actually lose more miles, Mr. Chairman, out of neglect and
failure to maintain the roads than we actually lose through
active----
Senator Thomas. I'm not debating whether that is a good
idea or not. This is a procedural question for most people. I
remember the feedback when you had an 18-month moratorium, then
you did a study, you had comments, people had their comments
in. Now you've got a new action plan and you have a different
set. These are the kinds of things that keep peoples' blood
pressure up a little high.
Senator Chafee. Senator Crapo, do you have a question of
Secretary Glickman?
Senator Crapo. I have a bunch of them but since there's
about 30 seconds left, I'll submit them to the Secretary.
Senator Chafee. And would you be good enough to respond to
the questions that are submitted to you in writing?
Senator Baucus. I have some questions about wolves.
[Laughter.]
Senator Chafee. Thank you, Mr. Secretary.
Any other questions of Ms. Browner?
Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman.
Administrator Browner, has a cost analysis been done to
calculate the requirements to implement the Clean Water Action
Plan? What I'm getting is we talked about the need for EQIP
funds and all the other different sources of help that we need
to provide to achieve this, have we identified the cost that
the plan would impose on State and local government, the
private sector and so forth as we proceed, if it were
implemented?
Ms. Browner. As each of the individual actions are
developed--I'm not the keeper of the Forest but that probably
is a good example, in the Action Plan, it's a goal and they
then have to come through the entire regulatory process--public
comment and notice--with all of the cost information that
you're talking about. Another example would be in the AFO-CAFO
work, those issues are being looked at.
So they are looked at in the context of the individual
actions as those are developed beyond the basic plan which is
really, I'll be honest with you, the best way to do it because
it's when you get into all of the details of how to address the
large industrial feeding operations that you can start to best
understand that and to make sure that you are achieving an
appropriate cost-benefit relationship.
Senator Crapo. I've been out on the ground with some of
these operations, the smaller ones.
Ms. Browner. Which are probably the ones that are not
covered?
Senator Crapo. I'm hoping I'm hearing you right, that I
didn't need to be out on the ground working with them on this.
As I was out on the ground with them, the issue that seemed to
be the biggest, after getting past the questions of
jurisdiction and whether the rules were going to result in
anything positive rather than just work that didn't create an
improvement for the water quality, the question was how are we
going to find the financial ability to do what it appears we're
going to be forced to do.
Again, we don't know what that is going to be yet, so
there's a lot of concern being generated simply because of
these questions, but it seems to me that one of the most
important things we can do here, if we're going to answer these
questions about EQIP funding and all of the other resources
that we can bring to bear, we'd better find out how much each
of the individual components are going to cost so that we can
build the case for providing the resources to solve these
problems, so I would encourage a very aggressive focus on that.
One last comment because I know the chairman wants to move
on quickly here. With regard to the question of flexibility
that I started out visiting with you about, back in September
of last year, the Idaho Department of Environmental Quality and
the NRCS, as well as your EPA Assistant Administrator, wrote a
letter to both Secretary Glickman and yourself indicating that
Idaho is already using a form of the unified watershed
assessment and that the TMDLs are being developed on a
watershed basis in Idaho in consultation with the State and
Federal Land Management Agency.
What I'm getting at is I think that Idaho can very clearly
show that we are well underway in working out this problem.
Ms. Browner. We agree.
Senator Crapo. I'm glad to hear your comments here today. I
hope that when the dust settles and we see what really is going
to happen here, that we do have the kind of watershed approach
that allows State and local involvement in managing and
actually developing the applicable standards. I appreciate your
commitment to that.
Ms. Browner. We appreciate the work your State is doing and
I think we feel it is a good and positive relationship, which
is not to say we don't have moments of disagreement, but I
think in terms of serving the needs of your citizens, we are
working together in the way that this plan was designed to
ensure. I think at this point in time that is a good example.
I think there was some concern when the unified watershed
assessment work first began that every State had to do it
exactly the same, but actually this is a good example of where
we recognize that some of the work your State had done, which
might be different from another State, still got to the same
point and it made sense to rely on that, and things didn't need
to be redone or duplicated.
Senator Crapo. I look forward to working with you to help
this happen.
Senator Chafee. Senator Thomas has a quick question and
then we will move on.
Senator Thomas. A little follow-up, Administrator, on that
unified watershed assessment. Section 319 does not implement
regulations that require it. How do you justify congressionally
withholding appropriated funds from a State that did not
complete it?
Ms. Browner. Every State has completed theirs. We signed
off on your unified watershed assessment. The last time I was
here before this committee, Senator Thomas, you were concerned
that your State was the only one. Now all 50 States have
unified watershed assessment plans and the next phase is to
work on the section 319 funding.
Senator Thomas. They completed it because you threatened
not to pay if they didn't, isn't that correct?
Ms. Browner. No.
Senator Thomas. It's funny, we get different information,
Ms. Browner. We'll have to get together won't we?
Ms. Browner. We're working with your State now, as we are
with every State, to provide the $100 million in additional
funding and the back and forth process of determining how they
can best use the money.
Senator Thomas. I understand that. The key, however, to
what Senator Crapo is talking about is when you have money,
then you set the requirements for what you have to do to get
the money and that kind of takes a little of the friendliness
out of the partnerships.
Ms. Browner. The good news is, I think the last time we
were here, you were correct that your State's plan was still
not resolved. It is today resolved. We worked hard with your
State to make sure that happened and now they are in exactly
the same place as every other State which is, working on the
funding mechanisms.
Senator Chafee. Thank you very much, Ms. Browner. We
appreciate your coming here today.
Now we will go to the next panel: Mr. Gary Beach from
Wyoming; Mr. John Godbee from International Paper; Mr. Dan
Heilig of the Wyoming Outdoor Council; Mr. Ross Wilson of the
Texas Cattle Feeder's Association; and Ms. Jane Nishida,
Secretary, Department of Environment, Maryland. If each of you
will take a seat, we'd like to move right along here.
We will start with Mr. Gary Beach. Senator Thomas, do you
want to introduce Mr. Beech?
Senator Thomas. Yes, sir. I'd like to do that. I could do
two at one time, as a matter of fact.
Mr. Beach is from Wyoming and represents the DEQ there. Mr.
Heilig, whose name is not in the right place, is also from
Wyoming and represents the Outdoor Council. So we will have a
little different point of view but I think that's helpful. I
welcome both here and appreciate their making the effort to
come.
Thank you, Mr. Chairman.
Senator Chafee. Mr. Beach, why don't you proceed? If you
could restrict your testimony to 5 minutes, we'd appreciate it.
All statements will go in the record anyway.
STATEMENT OF GARY BEACH, ADMINISTRATOR, WYOMING DEPARTMENT OF
ENVIRONMENTAL QUALITY
Mr. Beach. Thank you, Mr. Chairman.
I will summarize my testimony and I'd like to draw to the
last page of that with respect to recommendations but before I
get there, let me share with you some thoughts.
I didn't fly in from Mars, I flew in from Wyoming. I sense
there is kind of a lovefest going on here and I want to bring
you a perspective from the netherlands. These are the people
clear out, almost on the other side of the Nation that I'm
talking about. We talk about locally-led partnerships and we
all agree with that; we talk about existing resources, we ought
to use what's working; and we all seem to agree with that. We
talk about CAFOs, animal feeding operations and we're only
going to capture 5 percent of them by regulation.
When I listen to these things, I'm confused because I'm not
sure that we understand one another. I think what I want to try
to leave you with is not a criticism of the Clean Water Action
Plan. I realize my job on the panel here I think is to be
against it but I want to talk more about how we deliver
services in this Nation to our citizens. In my mind, that's the
bottom line, the service we deliver to our citizens.
We're dealing with people, personalities and locations. Let
me tell you, in Wyoming, when I go out to a community, I
realize the first thing I do in that community will be
different from what I do everywhere else in the State because
they are different people. They don't want to be the same; they
wanted to be treated unique and different.
What that tells you here is you have to be ready to look at
all ways to skin the cat, that's more than nine ways, many
ways, to skin the cat if I'm going to achieve my job on the
front line of getting clean water for you. So I'm troubled when
you say everything is locally-led partnerships. I can assure
you the Clean Water Action Plan was not a locally-led document.
I can assure you of that. I can assure you that when you say
use existing resources, we have a wonderful TMDL program going
on in Wyoming now. It took the encouragement of our friends
from the environmental organizations to sue us to get us to
realize we needed to do it, but we're doing it. We've gotten
our stakeholders together and we've past their fear of what
government is about to their willingness to accept
responsibility and to do something about it. It took us 2 years
to do that. That is a resource we have.
What happens? We just get this done and out comes this
Clean Water Action Plan and it's broadcast across the Nation.
Everybody has to do it and our people go ballistic then. Why
couldn't we have rolled out a program that says we want clean
water, we want to do it holistically, we want to coordinate, we
want to communicate and we want to include people and use the
things you've got going for you to do that. Then we would have
maintained trust because fundamentally that's what we have to
have in this country, if you're really going to achieve your
goal of getting local people involved in solving their
problems, and I think that's what you have to do in clean
water. We have to do that because the non-point source program
is a program where no longer do I just write a letter to
industry corporations and say, hey, clean up your water and
they hire attorneys and experts and put money into it and lo
and behold, it's clean. That's an easy job. Now you're asking
me to go visit with my grandmother and say grandma, I've got to
convince you to get the cows off the creek. How do I do that?
That's what we're dealing with today. Your message has to be
different.
You talk about the CAFO document, confine animal feeding
operations, but we talk about that's only going to touch a few
people. It's nonsense. It will touch everyone. It will touch
operators that don't even have a confined animal feeding
operation because they're afraid now that when they put their
cows on the creekbed in the winter for winter feeding, that's a
confined animal feeding operation and EPA is going to be out
one of these days to inspect me. It's nonsense. Once again,
we've rolled out a message the wrong way.
All I'm really suggesting is that we need to rethink in
this country how we achieve what we want. I know our Governor
keeps talking national goals. Tell us what your goal is, leave
it to neighborhood solutions. That's not State solutions,
that's even a lower level. That's neighborhood solutions.
Before my time runs out, I'll take you to the last page of
my testimony and there are three suggestions there. I'm sure
the first one, you think, well, that's nonsense, withdraw the
Clean Water Action Plan. Once a government puts something out,
does it ever take it back. I would suggest to you that in
Wyoming if you really want to come to the table and talk about
how we achieve the results, not just process but results, be
willing to pull it off the table and throw it on the floor.
Then we can talk about how do we achieve results and we won't
get all hung up in this document.
I suggest that we look at functionally equivalent programs.
Allow a State to come in with a program that they think meets
your goals and honestly consider it. Let me tell you, there may
be 50 different programs, but you need to be willing to
consider those personalities because they matter.
Finally, I talk about new regulatory programs. It seems
like there's a rush to regulate. I think this is particularly
the case in the large animal feeding operations. I would
suggest to you that if you looked around this Nation at the hog
industry, you would find that most States by now have a pretty
good regulatory program in place. Why does the Federal
Government need to adopt regulation on hog farms. Maybe there's
one or two States that need the support of EPA and you can work
individually with that State to help them beef up the program.
We don't need to rush out a whole new set of regulations that
captures all these animal feeding operations before we've even
done the first analysis of do we need this. It's once again how
you roll out your goal.
With that, I will end my suggestions and answer questions.
Senator Chafee. Thank you very much, Mr. Beach.
Mr. Godbee.
STATEMENT OF JOHN GODBEE, ENVIRONMENTAL MANAGER, FOREST
RESOURCES, INTERNATIONAL PAPER CORP., ON BEHALF OF THE AMERICAN
FOREST AND PAPER ASSOCIATION
Mr. Godbee. Thank you, Mr. Chairman and members of the
committee. I appreciate the opportunity to testify today for
the American Forest and Paper Association on the President's
Clean Water Action Plan.
The American Forest and Paper Association is the Nation's
trade organization for the forest products industry. We
represent about 90 percent of the industrial forest land
ownership in this country, 50 percent of the solid wood
manufacturing and 84 percent of the pulp and paper production.
We also represent and work very closely with the over 9 million
private, non-industrial landowners that own 56 percent of the
Nation's productive forestland. In working with International
Paper, we are the largest private forest landowner in this
country with over 7.5 million acres of land and operations in
46 States. The Clean Water Action Plan is very important to us.
Upon release of the plan, our first effort was to look at
the plan and see if it was consistent with the private sector
initiatives that are underway. After reviewing this, we,
unfortunately, came to the conclusion that it was too
proscriptive, that it failed to recognize and promote the
private sector initiatives that are aggressively underway to
meet and obtain the goals of protecting clean water in this
country.
Back in 1994, our members committed to the Sustainable
Forestry Initiative as an example of a program that's working,
a comprehensive set of principles and guidelines that are
underway that combine the growing and harvesting of trees with
the protection of soil, air, wildlife and water quality. This
program is a condition of membership within our trade
association and unfortunately, we have lost a few members
because of this commitment but we've gained others. We believe
in what we're doing. Members are required to meet or exceed all
established best management practices that are developed and
applied at the State level--our objective is and can be no less
than 100 percent compliance--to establish and implement
additional riparian protection measures, work with the States
and to provide funding for water quality research.
In 1997, we rolled out a report and began to look at what
we're doing on the numbers of acres committed to voluntary
plans and conservation agreements with State and Federal
regulatory agencies and conservation groups. Almost 11 million
acres, or approximately 20 percent of the industrial forest
ownership, has been enrolled in plans, voluntary conservation
plans, to protect soil, water and wildlife. Over 4,300 miles of
streams are also included in these plans.
As you can tell from these commitments, we believe the
forest products industry has our own clean water action plan
and we're very proud of it and feel like it's working. It's
from being a program based in Washington; it's about on the
ground application of forest management and water quality
protection.
State implementation committees have been established in 32
States. American Forest and Paper Association members have
committed to funding logger education and landowner education
assistance programs. We've spent over $3.1 million in doing so.
Over 20,000 foresters and loggers have been trained in
sustainable forestry and implementation of best management
practices in these programs, and more than 86,000 private, non-
industrial landowners have been reached and provided
information and professional assistance.
We hope the Federal agencies, as they look at their clean
water action plan, will recognize what we're doing and will
step up and help us to identify those areas that will
complement these actions that are already underway. We believe
that the implementation of forestry best management practices
represents the solution for obtaining water quality. Eighteen
States have recently reported that in assessing the compliance
with best management practices across all ownerships,
compliance rates were 85 percent and we can do better. As I
said, we can't accept any less than 100 percent. These results
are encouraging.
We strongly support funding for the States to conduct
additional monitoring and to audit the effectiveness of these
programs. Numerous studies show that when these practices are
implemented, they are effective in protecting water quality.
At this point, I'd like to shift to two issues that are
within the plan with which we have some concerns. First, EPA is
preparing rules for the TMDL, Total Maximum Daily Load Program.
While we await issuance of these proposed rules, we're
concerned about the lack of sufficient data that is used to
classify many of the over 21,000 streams that are listed in
this country. We are also concerned with the methods that are
used to determine what sources of impairment have caused these
listings. We believe any plan must include more scientific
data, better data to understand water quality monitoring
samples conducted over time and space, not just a one time,
point in time sampling. The determination of actual maximum
daily loads and allocation to stream segments is a very complex
process and this process is generally impractical for
addressing non-point source pollution.
I have one final point regarding EPA's request for
additional authority and money to run a non-point source
control program. We believe approved best management practice
programs tailored specifically to the conditions and forest
types of the States are the way we must go. As I said earlier,
the results are impressive. BMP and compliance rates are very
high. We don't need a Federal agency prescribing forest
management practices from Washington. What we do need is a
compliance standard evaluation program where States are
auditing and monitoring and conducting research to help us in
an ongoing process of continuous improvement.
As EPA proceeds to implement the actions related to the
forest management in the Clean Water Action Plan, we hope the
agency will recognize the ongoing efforts that are out there in
the private sector and we ask them to join with us in
protecting water quality.
With that, Mr. Chairman, I appreciate the opportunity to
speak and will be glad to answer any questions.
Senator Chafee. We will reserve the questions until
everyone has testified.
Mr. Dan Heilig, Wyoming Outdoor Council.
Mr. Heilig.
STATEMENT OF DAN HEILIG, EXECUTIVE DIRECTOR, WYOMING OUTDOOR
COUNCIL, ON BEHALF OF THE CLEAN WATER NETWORK
Mr. Heilig. Thank you very much, Mr. Chairman, Senator
Thomas and Senator Crapo, for having me here today. I
appreciate the opportunity to testify on behalf of the Wyoming
Outdoor Council.
Wyoming Outdoor Council is Wyoming's oldest and largest
independent conservation organization. We were established in
1967 and today have about 1,600 members in Wyoming and many
other States across the Nation. WOC is also an active member of
the Clean Water Network, an alliance of over 1,000 public
interest groups representing environmentalists, family farmers,
anglers, commercial fishermen, civil associations, rural policy
and consumer advocacy groups, working together to implement and
strengthen the Federal clean water policies. I am testifying
today on behalf of both the Clean Water Network and the Wyoming
Outdoor Council.
Wyoming is known better by its official motto as the
equality State but it's also the Nation's headwaters State. The
Snake River, Green, Madison, Yellowstone, Big Horn and North
Platte Rivers all originate in my State high in the Rocky
Mountains.
Our organizations support the Clean Water Action Plan
because it focuses significant Federal resources on the most
pervasive cause of water quality impairment to Wyoming, surface
waters, polluted surface runoff. The Plan's emphasis on
watersheds rather than discrete stream segments makes sense
given that surface polluted runoff comes from many different
and often diffuse sources spread out over large areas.
A key feature of the Plan is the $100 million increase in
funding under section 319 of the Clean Water Act for fiscal
year 1999 for locally-led restoration efforts in watersheds
that do not meet clean water or other natural resource goals.
Unfortunately, not everyone in Wyoming shares my enthusiasm
and my group's enthusiasm about the Plan. In February of this
year, the Wyoming Association of Conservation Districts and
several other parties filed a 60-day notice of intent to sue
the EPA and the U.S. Department of Agriculture. They claim in
their notice, among other things, that the Plan violates the
National Environmental Policy Act, the Unfunded Mandates Act,
the Federal Administrative Procedures Act, and constitutes a
taking of private property.
For the benefit of the committee, I would like to provide a
brief overview of the situation in Wyoming from my vantage
point vis-a-vis the Clean Water Act and the efforts to
implement it. I hope and expect that you will conclude from my
testimony that a stronger Federal presence is needed in
Wyoming, more oversight, more enforcement, more technical and
financial assistance.
In 1996, using information provided by a variety of
sources, including many Wyoming conservation districts, the
Wyoming DEQ listed over 360 stream segments as water quality
limited, therefore requiring watershed restoration strategies
or TMDLs. However, the Conservation Districts concerned about
the implications of such a large number of listed streams,
began to take action and has focused its attention and
resources on strategies to block the creation and
implementation of TMDLs. This strategy involves removing as
many segments as possible from the 303(d) list without taking
corrective action and efforts to reclassify surface waters to a
lesser standard to obviate the need for pollution limits.
As a result, citizens in Wyoming today are involved in a
pitched battle to prevent the further weakening of water
quality standards and efforts to circumvent other important
provisions of the Act.
The Unified Watershed Assessment is the centerpiece of the
Clean Water Action Plan. Wyoming was the only State in the
Nation to miss the initial deadline for submitting a unified
watershed assessment. As correctly pointed out earlier, they
have in fact submitted an assessment which I believe was
approved by EPA and has received some 20 percent of the
incremental funding made available through section 319.
Wyoming was also the only State in the Nation that failed
to identify any watersheds requiring restoration efforts. The
absence of such watersheds should not be construed as evidence
we have no water quality problems in Wyoming. Rather, it
reflects a concern that identifying damaged watersheds could
trigger a regulatory response that includes restrictions on
land use or mandatory imposition of best management practices.
Wyoming's triennial review of its surface water standards
is nearly a decade behind schedule. Last completed in 1990,
this 3-year review is required by section 303(c) of the Clean
Water Act. As a result of the nearly 10-year delay and due to
inadequate oversight by EPA, many of Wyoming's surface waters
do not meet minimum Federal requirements. For example, all of
Wyoming's Class IV waters, which are classified for industrial,
agriculture and wildlife water uses, do not comply with the Act
because they are not supported by use attainability analyses. A
use attainability analysis is required by the Federal
regulations before agencies can set a standard that is not
protective of the basic fishable, swimmable uses prescribed in
the Act.
Although the antidegradation provisions are a critical
element of the Clean Water Act, Wyoming's water quality
standards still lack 27 years after the passage of the Act this
mandatory provision. As a result, many of its high quality, so-
called Tier II waters have been unlawfully degraded by point
and non-point source pollution. In some cases single point
sources lacking proper effluent controls have consumed
substantially all of the water bodies' assimilative capacity.
Recent legislative enactments in Wyoming block attainment
of clean water goals and threaten Wyoming's primacy to
administer environmental laws. Earlier this year, the Wyoming
State Legislature passed Senate File 27 which requires the use
of credible data to find scientifically valid, chemical,
physical and biological monitoring data collected under an
accepted sampling and analysis plan, including quality control,
quality assurance procedures and available historical data to
designate uses and to establish water quality impairment.
Because the law requires that designated uses assigned by
the DEQ be backed by credible data, it frustrates the water
quality enhancement goals of the Clean Water Act. Under the
Clean Water, designated uses must reflect potential water
quality.
Senator Chafee. Mr. Heilig, you'll have to wind up now
fairly close.
Mr. Heilig. You see in my written testimony a litany of
problems that we're confronting in Wyoming. Before I conclude
my remarks, I want to inform the committee that last night I
received a fax from the chairman of the Wind River
Environmental Quality Commission expressing some concerns
about, first of all, not being invited to participate in
today's hearing.
Senator Chafee. I think we did pretty well out of five, we
got two from Wyoming. That's not too bad a score.
Mr. Heilig. If there is some way to enter this into the
formal record, there are some interesting observations made by
the chairman.
Senator Chafee. You can tell that gentleman I don't know at
which end of the spectrum his views are, but they've been
represented by one member from Wyoming or the other. I don't
think you and Mr. Beach are singing off the same sheet. Have
you met?
Mr. Heilig. I believe we have.
Senator Chafee. Did you come on the same plane?
Mr. Beach. No, we didn't.
Senator Chafee. Thank you, Mr. Heilig.
Mr. Ross Wilson, vice president, Texas Cattle Feeder's
Association.
Mr. Wilson.
STATEMENT OF ROSS WILSON, VICE PRESIDENT, TEXAS CATTLE FEEDER'S
ASSOCIATION, ON BEHALF OF THE NATIONAL CATTLEMEN'S BEEF
ASSOCIATION
Mr. Wilson. Mr. Chairman, members of the committee, thank
you for this opportunity to testify.
I am Ross Wilson, vice president of the Texas Cattle
Feeder's Association. We are a State affiliate of the National
Cattlemen's Beef Association. I am also involved in the Clean
Water Working Group that NCBA has recently developed in an
effort to work with USDA and EPA on reasonable regulations for
our industry.
Our organization represents 30 percent of the Nation's fed
cattle, about 7.2 million head per year. Cattle feeders and
ranchers are keenly interested in protecting the environment,
but it is also crucial that we maintain a strong livestock
industry that is essential to the Nation's economic stability
and our rural communities.
TCFA and other NCBA State affiliates have implemented
proactive environmental protection programs. Some of those
would include development of pollution prevention plans, manure
management manuals, environmental research with several land
grant universities, actual coring of retention ponds to ensure
the liners are working and the list goes on and on, employee
training, et cetera. That is taking place in a number of the
major cattle feeding States, particularly in Texas, Kansas and
Nebraska where 70 percent of the Nation's cattle are fed.
The USDA-EPA unified strategy for animal feeding operations
has a broad goal and an extremely ambitious timetable to
minimize water quality impacts from animal feeding operations.
Please remember the cattle feeding industry has been regulated
for some 25 years. Concentrated animal feeding operations
currently are held to a zero discharge standard with the
exception of the 25-year, 24-hour storm event.
Senator Chafee. Where does that regulation come from? Is
that the State?
Mr. Wilson. That's Federal but it's reflected also in many
of the State regulations. That's in the EPA regulations.
We're generally located in arid regions of the country as
you can see from the map that was attached to our statement. As
the title states, this is a strategy for animal feeding
operations and thus applies to all livestock. The problem with
this one-size-fits-all approach is that pork, poultry, dairy
and cattle operations are run with different management
strategies. This approach failed to recognize topography and
climate differences within our industry. Some cattle feed lots
are located 10 miles from surface water, over a 300-foot deep
groundwater aquifer; others may be 400 yards or 100 yards from
a stream and over a shallow groundwater aquifer. While these
operations utilize different management practices due to their
diverse risk factors, the strategy treats them the same.
Another concern is the requirement for watershed permits
where clusters of feedlots are located in a potentially
impaired watershed. Current law requires a site specific
determination for each of the animal feeding operations before
they can be regulated as a concentrated animal feeding
operation.
Also of concern, the strategy calls for comprehensive
nutrient management plans, not the plans themselves, but the
fact that they will be required for some 450,000 animal feeding
operations by 2009. This is an extremely aggressive plan with a
very stringent timetable, especially in light of some of the
historical implementation of programs at the Department of
Agriculture.
EPA also wants States to issue permits to 20,000
concentrated animal feeding operations designated as priorities
by January 2000. The models for these permits would be
finalized in August of this year, leaving only 3 months for
States and the EPA to issue these 20,000 permits. It is these
unrealistic timetables that concern our industry as well as the
limited agency resources to accomplish these goals.
One of the areas of greatest concern in the comprehensive
nutrient management plan is the discussion on land application
of manure. There are two categories to consider--land
application on land owned or controlled by the concentrated
animal feeding operation and land application on land that is
owned or controlled by a third party.
In our area, and in much of the Great Plains feeding
States, the manure from feedlots is sold to a third-party to
contract haulers who then provide the manure and the service of
land application as a part of a business agreement, i.e., the
sale of commercial organic fertilizer, to farmers.
To hold the CAFO operator liable for a product that has
been sold and taken miles away from the CAFO would not only be
extremely burdensome and costly, it also appears to exceed the
EPA's authority under the Clean Water Act. As we interpret the
Act, the agricultural stormwater exclusion applies to off-site
land application and places this in the non-point source
category. EPA should respect this exclusion and let States
remain in control of non-point sources.
Mr. Chairman, the market for manure versus commercial
fertilizer is a very thin, fragile and competitive one. If EPA
puts undue regulatory restrictions on land application of
manure, we will see many farmers switch to commercial
fertilizer.
Before I close, I have two more important points to make.
First, the strategy will likely force small- to medium-sized
operations to either expand or go out of business because of
increased compliance costs. This should concern several of the
Senators who have spoken on the floor recently about the
consolidation in American agriculture.
Second, we recommend that EPA implement existing
requirements before introducing a new, costly and perhaps
unnecessary regulatory program. EPA, in its own document,
admits that they have a very small implementation percentage
across the Nation of the current permitting program for feeding
facilities.
EPA must recognize that many States and most of our
industry are doing an excellent job and are going beyond what
the agency requires, but how can we judge the sufficiency of
the current program before it is fully implemented.
Thank you and I will be happy to answer any questions.
Senator Chafee. That's constructive testimony, Mr. Wilson.
Ms. Jane Nishida, secretary, Maryland Department of the
Environment.
STATEMENT OF JANE NISHIDA, SECRETARY, MARYLAND DEPARTMENT OF
THE ENVIRONMENT
Mr. Nishida. Thank you, Mr. Chairman and members of the
committee.
My name is Jane Nishida, secretary of the Maryland
Department of the Environment, which is the principal
regulatory agency for the environment for the State of
Maryland.
I am pleased to be here today to support President
Clinton's new national initiative to protect American waters
and to give Maryland's perspective on behalf of Governor Parris
Glendening.
After 27 years of pursuing regulatory solutions under the
existing Clean Water Act, the Clean Water Action Plan
represents a fresh and innovative approach which enhances the
environmental options available to States to address impaired
waters.
Maryland is fortunate to have one of the Nation's most
outstanding resources, the Chesapeake Bay. The people of
Maryland know the importance of the Chesapeake Bay and are
committed to continue the excellent progress in restoring the
health of the Bay. There are many waters around the country
which could similar benefit from a comprehensive watershed
management approach like the watershed assessment resource
prioritization process and action strategies which are outlined
in the Clean Water Action Plan.
The Action Plan will provide Marylanders a process for
refocusing priorities and a mechanism for developing an
overarching strategy to address issues which transcend various
environmental laws such as the Clean Water Act, the Safe
Drinking Water Act, and the Coastal Zone Management Act.
No better model exists as to how a watershed approach can
serve as a catalyst for developing interrelated, voluntary and
regulatory solutions to water quality management than the
Chesapeake Bay Program. Through the Chesapeake Bay Program,
strong Federal, State and local partnerships were achieved.
Tributary teams were made up of citizens, farmers, local
governments, environmentalists, scientists and various business
interests to assess the waters, to identify problems and to
establish goals. One of the most successful outcomes of these
voluntary efforts was a goal to achieve a 40 percent nutrient
reduction by the year 2000. Each tributary strategy team has
identified reductions and targeted both point and non-point
sources in each watershed.
In Maryland, we have instituted a 50-50 cost share program
which has contributed over $125 million in the last 10 years to
the cost of installing nitrogen removal equipment at 63
targeted wastewater treatment plants. This effort alone has
reduced nitrogen to the Chesapeake Bay by 27 percent. Last
year, the Maryland General Assembly passed landmark legislation
which would require nitrogen and phosphorous-based nutrient
management plans on almost all farms by the year 2002 and
complete implementation by the year 2005.
The Clean Water Action Plan will reinforce Maryland's
efforts to clean up the Chesapeake Bay through various
initiatives: No. 1, by promoting watershed assessments, by
providing guidance to the State for establishing total maximum
daily loads, for enhancing current funding levels for State
programs such as 319, and by requiring all States to manage
nutrients on farms by implementing the new CAFO or AFO strategy
which would create a level playing field among farmers.
Although the Chesapeake Bay Program has focused on
traditional pollutants like nutrients and toxics, in the summer
of 1997, Maryland also experienced a serious health threat
called Pfiesteria. Emerging diseases like Pfiesteria and the
outbreak of cryptosporidium in Milwaukee illustrate the need to
reinvigorate our public health program. Source protection
studies under the Safe Drinking Water Act and the river basin
studies in the Clean Water Act can achieve far greater results
by combining them under a collaborative watershed assessment
approach as encouraged under the Clean Water Action Plan.
Another approach encouraged through the Clean Water Action
Plan which Maryland is aggressively pursuing involves smart
growth. Governor Parris Glendening introduced landmark
legislation in 1997 which discourages sprawl development by
targeting public funds to existing communities where
infrastructure is in place to accommodate planned growth. This
program protects and preserves our green and open spaces and
targets our limited public funding to existing infrastructure
needs which significantly enhance our efforts to reduce
pollution. Key projects targeted for receiving funds include
combined sewer overflows, stormwater retrofits, sewage
treatment upgrades, water source protection and wetland
creation projects.
In summary, much progress has been made under the
framework of the Clean Water Act, but as we move forward to the
next millennium, new challenges must be met with renewed focus
and commitment. Watershed assessments and permits, nutrient
water quality standards, a progressive CSO strategy,
implementation of the AFO-CAFO strategy, new wetlands
initiatives and stricter controls on non-point source runoff,
including smart growth, must be elements of our new
environmental management approach.
Maryland strongly supports the watershed restoration and
assessment approach outlined by the Clean Water Action Plan
because by bringing together efforts to comprehensively address
public health, water quality and living resources, it will
enable us to meet the continuing challenges of restoring and
preserving fishable, swimmable waters not only in Maryland but
throughout all the waters in the Nation.
Thank you.
Senator Chafee. Thank you very much, Ms. Nishida.
We had testimony on smart growth and we had a witness, as I
recall, from Maryland who talked about some of the steps you've
been taking, for example, making sure that if you build a new
courthouse, you build it in the town instead of outside
somewhere in some lovely field and lose that open space
needlessly.
In your State, you have massive poultry operations. What do
they say when you embrace the Clean Water Action Plan? What do
they do with all the manure that emerges from these massive
operations? What happens to it?
Mr. Nishida. As I mentioned, as a result of the Pfiesteria
crisis that the State of Maryland suffered 2 years ago, we were
able to introduce legislation and enact legislation that does
require almost every farm in Maryland to adopt nutrient
management plans.
Senator Chafee. What do they do? Do they have holding
lagoons but then what happens to it?
Mr. Nishida. Yes. Obviously not every farm in Maryland is
the same. Some farms land apply their nutrient. Under the
legislation in Maryland, they will be required to reduce the
amount of nitrogen and phosphorous in the manure. We have
provided technical assistance to them; we have provided
additional resources in terms of the NCSR and we have tried to
work with them to try to develop new technology in terms of
reduction of nitrogen in manure.
Senator Chafee. Have you succeeded?
Mr. Nishida. The legislation was just passed in 1998. We
have been working closely with the agricultural community to
address it.
Senator Chafee. Is there a certain time to meet these
deadlines?
Mr. Nishida. Yes, 2002 to adopt the plans and 2005 to
implement them.
Senator Chafee. I think Maryland certainly has a wonderful
record as far as environmental protection goes. I think
Governor Glendening has been a leader in all that.
Mr. Beach, you didn't have many good things to say about
the Plan and yet you heard the prior testimony of the Secretary
of Agriculture and the head of the EPA, saying they sought
cooperation, that one-size-doesn't-fit, that they worked with
the locals. What's been your experience on that score?
Mr. Beach. My experience is that the Plan was crafted
within the Beltway in a very short period of time. Yes, they
flew around the country and offered about 11 meetings. Most of
those meetings were by invitation, not a public forum.
Fortunately, we were invited to attend. We were critical of the
plan at that time because it wasn't bottom up, it was top down.
I'm not sure that our time there was worth the effort
because I didn't see much change in the final that came out. I
guess that's my perspective and hopefully that answers your
question.
Senator Chafee. Mr. Heilig indicated that more can be done,
he thought, by the State in Wyoming. Do you have any comments
on his testimony?
Mr. Beach. I would say that if you go to any State in this
Nation, you will find stakeholders who feel the State is not
doing enough, you will find stakeholders who feel they are
doing too much. So I think Mr. Heilig pointed out some of the
dirty laundry we have in Wyoming and there are some things we
need to do. No doubt about it, there's a lot there to do.
What is fundamental though that I think explains some of
the indifference that's going on in Wyoming is that you have to
reach people. If we're to solve the problem, if we want to
solve this national mission you have of clean water and you
want to tackle non-point sources of pollution, we have to reach
people, we have to motivate people and we have to make it
meaningful for them to do something.
That will take time. You will not just send a rule out that
says everyone will do this. I think that explains the
difference, sir.
Senator Chafee. Mr. Godbee, I listened to what you said and
it seems to me the folks who belong to your association--and
I've heard the radio ads too--the companies have to adhere to
the best management practices as you set them forth, and if
they don't, they get thrown out. You indicated that you thought
those best management practices were what's required. What
happens when you talk with the Agriculture Department on these
best management practices?
Mr. Godbee. As I understand it, what happens when we talk
with the Agriculture Department, most of our interface and best
management practice is with the State Environmental Protection
Divisions and with the State Forestry Commissions, indirectly
with the Department of Agriculture. Department of Agriculture
interaction would come through the Forest Service participation
at the State level in the development and implementation of
best management practices. Our interaction with USDA specific
is pretty limited.
Senator Chafee. I see. How do you get along with the
States? If they belong to your association, the company, that's
good enough? In other words, do they give you some credit for
the best management practices you've adopted?
Mr. Godbee. It varies from State to State. State best
management practice programs are developed for the specific
forest practices, geological conditions, climatic conditions,
the size of the industry and the types of industries within the
States and we go from State programs that are fairly
proscriptive to State programs that are completely voluntary in
nature.
Our relations with the States are generally very good. My
experience is primarily within the Southeast. In the State of
Georgia, we worked very carefully over the last few years in
the development of new best management practices with the State
Environmental Protection Division, the Wildlife Resources
Division, the local Nature Conservancy, conservation groups,
forestry industry and State government all worked hand in glove
in order to develop a new program, very strong working
relationships.
Senator Chafee. My time is up.
Senator Thomas.
Senator Thomas. Mr. Beach, Wyoming has primacy in the
administration of EPA, is that correct?
Mr. Beach. Yes, we have primacy for the Surface Water
Quality, NPDES Program, yes.
Senator Thomas. What's been your experience in terms of
flexibility and so on as you exercise this primacy in carrying
out the regulations?
Mr. Beach. I wouldn't say there's a lot of flexibility.
What I find is most people, if you take the Clean Water Action
Plan, they carry it around like the Bible and they flip it
open. Action item so and so says to do it this way. I'm talking
about the staff level now. So if you want flexibility, you
almost have to elevate that to management level to get that
consideration. Many of them strictly follow what is put into
their instructions and that's the limit of their flexibility.
Senator Thomas. If the State doesn't administer it, then
they lose the primacy; EPA comes in and does it, isn't that
correct?
Mr. Beach. That's correct.
Senator Thomas. Ms. Nishida, I listened to your progress.
Why would you want the Federal Government to become involved?
It sounds like you've been very successful. What is it you
expect them to add to what you're doing?
Mr. Nishida. Again, the reason we're supporting the Clean
Water Action Plan is because it is consistent with the approach
Maryland is taking. We believe that EPA has provided
flexibility to the States. We understand that one-size-doesn't-
fit-all and I think EPA recognizes it as well.
The advantage of obviously the Clean Water Action Plan is
it requires all States, given their unique circumstances, to
develop a level playing field so that all waters--many of them
are interstate waters--that there will be national standards
and national protections for all our citizens.
Senator Thomas. And there are not standards on interstate
movement?
Mr. Nishida. Again, each State takes different approaches.
One obviously is on nutrient management. Maryland took I guess
a leadership role in adopting our nutrient management
legislation last year. That is not something that most of the
country has done.
Senator Thomas. So your main thing is you want others to do
the same thing you're doing?
Mr. Nishida. Again, we believe there should be minimum
guidelines to the States. There are certain essential elements
in the CAFO strategy like public participation, enforcement
standards, but we also believe States need the flexibility
through what can be determined by them to meet those standards.
Senator Thomas. And you're comfortable there will be
flexibility here?
Mr. Nishida. I know there have been concerns raised with
the CAFO strategy among many States. My Governor is the chair
of the Natural Resources Committee and he has initiated
conversations with EPA and with USDA through NGA to work out
those issues such as the definition of functional equivalent
programs. So we are engaged in dialog with EPA.
Senator Thomas. Mr. Heilig, you indicated in your statement
you had submitted hundreds of pages of written comment in the
public comment period. When was the public comment period?
Mr. Heilig. I believe it was opened in late 1997 and
extended on into early 1998.
Senator Thomas. An open comment period for everyone to
comment like in NEPA?
Mr. Heilig. No, it was not a comment period that one would
associate with a NEPA process; it was a notice in the Federal
Register and many groups did respond, including the National
Association of Conservation Districts during that period.
Senator Thomas. You mentioned the lawsuit being filed and
so on, not just Wyoming but a number of States and a number of
organizations. If this has been accepted and signed on by
everyone, why do you think that's happening?
Mr. Heilig. I think frankly, Senator, there's quite a bit
of misunderstanding about what the plan is proposing to do.
I've read through it carefully now twice and many of the
initiatives, while important, are somewhat innocuous. For
example, there is an action item that would require EPA to
improve its website to better facilitate the dissemination of
information to the public. A number of initiatives like that,
increased monitoring, research and education, most of which
would have absolutely nothing to do with the States, would put
no burdens or mandates on States or local governments.
Senator Thomas. And you think other people don't understand
that apparently?
Mr. Heilig. I know from my discussions with people who have
shared concerns that they have not taken the time to read the
Plan. Again, I have been through it carefully now a couple of
times. There are action items that will lead to rulemaking and
as Administrator Browner stated earlier, those will be subject
to EPA rulemaking and Clean Water Act requirements.
Senator Thomas. Some of them, for example, indicate that
only a very small percent, 3.5 percent of the assessed streams,
go in as the scientific base for this. Isn't that troublesome?
Mr. Heilig. I think it suggests we need to do a better job
monitoring and assessing the Nation's waters.
Senator Thomas. You mentioned the TMDLs. What really
happened in Wyoming, as I recall, is that these streams were
listed without any scientific basis. Some of them weren't even
in the right county.
Mr. Heilig. There were some mistakes made.
Senator Thomas. There were lots of mistakes made.
Mr. Heilig. And the science varied highly. Many of the
streams though were placed on the list because of information
provided by the Conservation Districts. The folks in Wyoming
refer to these listings as drive-by listings where one would
look out the window----
Senator Thomas. And some of them were because they reduced
it.
Mr. Heilig. But many others were based on very good
scientific evidence provided by Fish and Wildlife Service,
Wyoming USGS.
Senator Thomas. Mr. Wilson, do you think the runs on the
confined cattle feeding are pretty simple and innocuous and
don't amount to much?
Mr. Wilson. Not at all, Senator. Look first at the animal
feeding operations which in the document, EPA proposes to
regulate with a voluntary type of approach and says ``implement
a comprehensive nutrient management plan,'' but then insinuates
very strongly later on in the document that if you do not do
that on a voluntary basis, then you will come under some type
of regulatory proposal in the future.
Later on in the document when they talk about specific
strategies for implementation, they talk about changing the
definition of a CAFO which would pull in animal feeding
operations today into a regulatory-based program.
Another concern we would have, a significant concern that's
been previously discussed, is the lack of resources at the
Department of Agriculture. In Texas over the last several
years, the NRCS Regional Office has lost 34 percent of their
manpower to work with producers, to implement programs like
this. We seriously question whether the commitment in funds
and/or manpower is there to get this implemented.
Senator Thomas. Mr. Chairman, I want to thank all the
witnesses for being here. I think it's been very helpful. I am
concerned that we're told by the EPA that there's 110
propositions out there, that each of them as they are
implemented will go through a process. I frankly am not
persuaded that is going to be the case. I think you'll see many
of them implemented without any congressional authority or
without any public comment. That's one of the concerns I have.
Senator Chafee. I think the point Mr. Wilson made about the
reduction in manpower at the Agriculture Department, what were
the figures you gave a minute ago?
Mr. Wilson. Yes, sir. USDA NRCS regional office in Texas.
Senator Chafee. That really worries me because one of the
inducements of this whole program is meant to be not only some
money but they said even more important than the money is the
technical assistance, but if they don't have the people, I
don't know how they're going to give that.
Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman. I had to step out
for a minute, so if the question I ask was just asked by
Senator Thomas, please excuse me.
Mr. Wilson, I want to direct my first question to you. You
were here during the testimony of Administrator Browner and
Secretary Glickman, were you not?
Mr. Wilson. Yes, sir.
Senator Crapo. As I took their testimony, they describe a
situation in which we were going to have a very locally-
oriented, bottom up type of development of standards, working
on a watershed basis and that there's going to be a lot of
flexibility at the State and local level. Is that your
experience with the process to this point in time?
Mr. Wilson. No, sir. The document does talk about
flexibility and voluntary versus regulatory, but also we must
remember that the States are going to be held to implementing
EPA standards or they run the risk of losing the delegation of
the State program.
In dealing with some of the EPA regions, we also don't
necessarily see the flexibility. The 1,000 per animal unit
permitting threshold that moves you from an animal feeding
operation to a concentrated animal feeding operation has been
proposed for change.
Also, the Administrator talked about flexibility in some
arid regions of the country. I believe she used your State for
an example and indicated that you might not even have to have a
permit. Today there exists what we call a CAFO exclusion within
the regulations that says if you only discharge under certain
circumstances, you don't have to have a permit. EPA, in its
strategic initiatives later on in the document, proposes to
eliminate this exclusion. So I'm not sure the flexibility will
be there.
Senator Crapo. A lot of those concerns have been expressed
to me and I assume you heard the Administrator say something
like 95 percent of the operations would not be covered. As you
review the Clean Water Action Plan and the CAFO requirements,
do you reach the same conclusion?
Mr. Wilson. It will be a high percentage that will first
have an initial opportunity to be regulated on a voluntary
basis but again, our concern is they will ultimately be forced
into a regulatory approach.
Our other major concern, as outlined in my testimony, is
that we have some very good standards in place today. Our
State, our region, in fact, our Region VI permit has been cited
as a model for CAFO permits around the country but yet this
strategy proposes to raise some of those technical standards.
We seriously question, based on EPA's data, that only 25 to 30
percent of the concentrated animal feeding operations around
the Nation have permits under the current strategy. We
seriously question how you can judge the completeness of
today's requirements without seeing those are fully
implemented.
On a parallel track, EPA has proposed an expanded and
enhanced compliance and enforcement program. We support that.
Let's see what we have today with the current standards before
we raise the bar.
Senator Crapo. Mr. Beach, I'd like to direct a few
questions to you as well. You are the Administrator of the
Wyoming Department of Environmental Quality?
Mr. Beach. Yes, the Water Quality Division of the
Department.
Senator Crapo. In Idaho that department is the one that
administers--for example, I assume Wyoming has primacy under
the Clean Water Act?
Mr. Beach. Yes.
Senator Crapo. So you would be the department that has the
responsibility for administering that Act under the State
primacy provisions?
Mr. Beach. That's correct.
Senator Crapo. As we deal with the question, getting back
to the testimony of the Secretary and the Administrator, of
flexibility and the issue of whether the States, under their
primacy, will be able to have the flexibility to deal with the
different needs in each watershed as I discussed with Senator
Browner in my questions, do you see that under the Clean Water
Action Plan as you're seeing it unfold, that type of
flexibility true does and will continue to exist at the State
level?
Mr. Beach. My testimony was that I don't see the degree of
flexibility that we need at each State level to give to the
Federal Government the kind of program that will work in each
watershed throughout the different basins in Wyoming.
If you ask me to give you a program, I might give you a
program by basin in Wyoming of how I will approach clean water
because I have to do it that way to reach those people who will
be influenced by that program.
Senator Crapo. But you don't have that flexibility?
Mr. Beach. I don't think I have that flexibility now, no.
Senator Crapo. So even though the Federal Government could
say we are letting the State have primacy and we are letting
the State address this on a watershed by watershed basis, what
I understand you to be telling me is that because of either the
withdrawal of funds or the requirements of regulations,
whatever, the pressures are there for the State to follow
pretty rigid rules even though the State is administering it?
Mr. Beach. Right. What actually happens is you come out
with a document endorsed by the President that says, here's
some great goals we want to achieve. None of us disagree with
those goals--we want clean water, we want to approach it
holistically. The next thing is that out of that then rolls out
all of these individual initiatives and those become more and
more prescriptive. Finally, they say, Gary if you want the
money, you've got to do these things and this is exactly how
you've got to do it and this is when you've got to do it.
Senator Crapo. If the State chose to not accept the Federal
funding, would it be able to avoid the Federal mandates? Would
you still have your hands tied in much of the administration
which you are required to do?
Mr. Beach. I assume that in the case of the Unified
Watershed Assessment, we chose to do ours a certain way which
was to take our TMDL program and say that's working for
Wyoming, we think that achieves your results. That's what we
want to do.
Initially, the Administration said, no, that doesn't meet
our requirements for a unified watershed assessment and because
of that, you're not going to get any of the incremental
funding. Now they have come back and begrudgingly accepted that
and we are getting 20 percent of the funds. So we're going to
lose the other portion of the funds because we did not
categorize our watersheds on a unit basis and Category I, II,
III or IV as instructed. We didn't do that. Because we didn't
do that, we didn't get the Federal funds.
Senator Crapo. Do you believe the State of Wyoming's
failure to do that caused any damage to the quality of the
water?
Mr. Beach. I think anytime you deprive a State of
resources, you damage the resources.
Senator Crapo. So the failure to allow the State access to
the Federal funding is going to have an impact on water quality
in Wyoming?
Mr. Beach. Yes. I think there is a direct tie there.
Senator Crapo. But if the Federal Government had allowed
the State to do it its way, would there have been a negative
impact on the water quality in Wyoming?
Mr. Beach. No, I don't believe so. I believe the program we
offered as a substitute to their prescription would have
achieved the same results.
Senator Crapo. So if I understand your testimony correctly,
what you're saying is that there wouldn't have been an impact
on the water quality, maybe even a better impact if the State
had been allowed to do it its way, and yet the result of the
Federal mandates that the State has to deal with is that either
you have to shift to a different program, which you've chosen
not to do, or you have to lose Federal funding which will then
have an impact on the water quality in a negative way?
Mr. Beach. That's correct. We had to make that choice and
we realized we may lose access to Federal money by not shifting
to their program. The compromise was to betray our citizens
where we have told them this is the program we're going forward
with.
Senator Crapo. It seems to me there's kind of an irony in
that the State has to either submit itself to a rigid,
bureaucratic, Federal mandate or put at risk Federal funding
that will help in protecting its own water quality, so the
water quality of the State is actually the pawn in this
decision the State has to make between retaining its own
control or submitting to Federal mandates.
Mr. Beach. That's how I view it, Senator.
Senator Crapo. Thank you. I have no further questions, Mr.
Chairman.
Senator Chafee. I must say that I don't find it so
shocking. As I understand what you're saying Mr. Beach, if the
State adheres to the Federal guidelines, if you would, they get
some money. If they don't, they don't get the money. So the
State makes a decision. I must say I'm not sure I find that----
Senator Thomas. Mr. Chairman, I don't think that's quite
what we're saying. We're saying here is the result, here is the
goal and if you achieve that goal in a different way, then you
shouldn't be deprived of the money.
Senator Chafee. I agree with that.
Senator Thomas. We're saying you shouldn't have to
necessarily do it in exactly the same technique.
Senator Chafee. What you're saying is there ought to be
more common sense in their review of what the State has done?
Senator Thomas. Or goal-oriented.
Senator Chafee. Yes, goal-oriented. I think those are the
words.
Just a statistic here that indicates that these problems in
agriculture aren't going to get less, they're going to get
increasingly challenging, between 1978 and 1992, the average
number of animal units per operation increased. That's 14
years. The average number of animal units per operation
increased by 134 percent for hogs and 176 percent for egg-
laying poultry.
According to the 1997 census, agricultural census, 3.8
percent of the farms, call it 4 percent of the farms are
responsible for 56 percent of all agricultural production.
That's astonishing. Let me ask you experts, what do you say to
that, Mr. Beach? Do you think that's a trend that probably will
continue?
Mr. Beach. The growth of the hog industry?
Senator Chafee. Yes, the growth per unit, farm unit, for
cattle, for poultry, for whatever it might be.
Mr. Beach. Yes, I think that's a reality, whether you look
at dairy farms----
Senator Chafee. Whether you like it or not, it's happening?
Mr. Beach. It's happening and that's the only way you
survive is to become a big business and not a small business.
Senator Chafee. What do you say Mr. Wilson?
Mr. Wilson. I would agree, Mr. Chairman, that it will
likely continue and one of the things driving that are these
potentially higher environmental compliance costs.
Senator Chafee. I think it's disturbing in your testimony
that the increased compliance costs could force or will force
small- and medium-sized operations to go out of business. What
do you call a small or medium operation, just out of curiosity?
Mr. Wilson. I think if you look at the regulatory threshold
of 1,000 animal units.
Senator Chafee. You're talking cattle?
Mr. Wilson. It's 1,000 animal units regardless of the
species. It happens to be 1,000 head of beef cattle. I believe
it's also 2,500 head of swine.
Senator Chafee. What would that be for?
Mr. Wilson. That moves you from the animal feeding
operation category into the mandated regulatory concentrated
animal feeding division.
Senator Chafee. How many in a small operation or medium?
Mr. Wilson. It varies. You get into the uniqueness of the
different areas of the country. For example, in Texas our
average size cattle feed yard is probably going to be 20,000 to
30,000 head. If you put that same operation on the East Coast,
it would be considered huge. Given the climatic situation and
depending upon its location, you have some very unique
management challenges.
Senator Chafee. Senator, do you have anything further?
Senator Thomas. No, sir, I don't.
Senator Chafee. I want to thank this panel very much, each
of you, Mr. Beach, Mr. Godbee, Mr. Wilson, Mr. Heilig and Ms.
Nishida. You've been very candid and helpful to us. We
appreciate it.
Thank you very much.
[Whereupon, at 12:28 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the Record follow:]
Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
Thank you, Mr. Chairman, for holding this oversight hearing. As one
of the members who requested this hearing, I appreciate the opportunity
to examine the Clean Water Action Plan, especially since this
initiative was created without input from Congress, nor was it
subjected to assessments under the National Environmental Policy Act
(NEPA). I am especially pleased to have both the Secretary of
Agriculture and the Administrator of the Environmental Protection
Agency (EPA) appearing before us today. I also want to welcome the
witnesses for our second panel. Certainly, having two witnesses here
from Wyoming reiterates the importance of this issue to my home State.
Mr. Chairman, none of us will disagree with the importance of
improving our Nation's water resources. In Wyoming, the tourism
industry depends upon a pristine environment. We have streams that
boast world-class trout fishing, so it is imperative that we protect
our water resources. Let me be very clear on this, I support efforts to
improve water quality, but I have substantial concerns with the
Administration's approach to this problem. As many of you know, I
strongly oppose the use of Executive Orders to launch efforts as broad
and over-reaching as the Clean Water Action Plan--it is essentially 111
``key actions'' affecting Federal agencies and State and local
governments. Since the Clean Water Act leaves nonpoint sources largely
unregulated, I believe this committee needs to ensure that the Action
Plan does not become a mechanism for agencies to overstep their
congressional authority.
In addition, I question if the Clean Water Action Plan truly
targets the problem it is intended to solve--reducing nonpoint source
pollution. The justification for the Plan is based upon the EPA's own
National Water Quality Inventory, which is a summary of State's 305(b)
reports. Scientific assessments by the U.S. Geological Survey have
indicated that the National Water Quality Inventory is so severely
flawed and scientifically invalid that it could not be used to
summarize water quality conditions. The problem with the Inventory is
that States use different measures to determine water impairment, but
yet, data is compiled into one report. A report that is somehow
supposed to summarize the status of our Nation's waters. To me, this
comparison makes little sense.
Earlier this year the General Accounting Office (GAO) released a
report that criticized the EPA's assessment of nonpoint source
pollution problems. Specifically, the GAO highlighted concerns relating
to: (1) how the Agency identifies waters polluted by nonpoint sources,
(2) the need for more data to develop cost estimates, (3) and the
extent to which the Federal Government contributes to water pollution.
Further, the GAO cautioned that the methodology used in determining
both water impairment levels and impacts from nonpoint sources was
underfunded and consequently, results were possibly inaccurate.
These findings greatly trouble me. I understand the challenges
Federal entities face in allocating limited financial resources.
However, it seems to me that if the goal is to improve water quality,
the Clean Water Action Plan should have first accurately identified the
causes of the problem. Without using sound, credible science to assess
the health of our waters, how can we be sure that this initiative, and
the tax payer's dollars to support it, will reduce pollution? We
already have programs in place, such as the Clean Water State Revolving
Fund (CWSRF), that successfully reduce pollution problems and in my
view, the Administration's proposed budget cut does little to promote
clean water. What is the harm in wanting to know the scientific basis
for the Action Plan and more importantly, why is this request deemed as
somehow being opposed to cleaning up our environment? After collecting
scientific data, if nonpoint sources are found to be a significant
obstacle to clean water, then I would urge Congress and the
Administration to make funding for voluntary and incentive-based
programs, a priority, as was done with point sources, to assist
landowners with pollution reduction efforts.
My interest in today's hearing will also encompass financial
burdens being placed on States, local communities and individual land
owners. This issue is not unique to Wyoming and I am concerned that
States are now spending their time and resources in attempting to
comply with the ``key actions'' called for in the Plan, instead of on
protecting water resources. Again, my belief is that these types of
problems are best dealt with at a local or State level, rather than
federally mandated. Certainly, we all have a responsibility to improve
water quality, the question is how to approach the problem without
placing an unfunded mandate on our States and landowners.
Thank you Mr. Chairman and I look forward to hearing from our
witnesses.
______
Statement of Hon. Frank R. Lautenberg, U.S. Senator from the
State of New Jersey
We recently celebrated the 25th Anniversary of passage of the Clean
Water Act. Since that time, we have made great strides in turning once
polluted lakes, rivers, and streams into places that we can enjoy.
We are making progress in identifying impaired waters, and
developing watershed-based approaches to protecting our valuable
natural resources. In 1975, 60 percent of our waters did not meet water
quality standards. Today only 40 percent fail that test.
One of New Jersey's own water bodies to benefit from the Clean
Water Act is the Raritan River in the central part of my State. The
Raritan is New Jersey's second largest river system. Thanks to the
Clean Water Act, this river is cleaner today than it has been in nearly
a century. Raw sewage discharges are no longer permitted and industrial
dumping has been held in check. Yet the river still remains heavily
polluted with contaminated sediments choking off marine life. Polluted
runoff and landfills still threaten the river basin. Large volumes of
PCBs and dioxin prevent fishing and swimming in the River.
The Raritan has been contaminated by ten Superfund sites, including
one that Administrator Browner's agency identified and placed on the
National Priority List just last year. The Superfund program is helping
EPA clean up these toxic sites and restore this once thriving river. So
I would add that the Superfund program is surely a large part of the
Clean Water Action Plan.
I applaud the Administration's commitment to redouble our efforts
on behalf of cleaner, safer water for all Americans. Under the Clean
Water Action Plan, the Administration has identified numerous
environmental threats that still need to be addressed. Both the
Environmental Protection Agency and the Department of Agriculture have
done a remarkable job in targeting those areas that need the greatest
attention.
I want to highlight just some of the areas in addition to
Superfund, where this Administration deserves tremendous credit:
Reducing polluted runoff from urban areas.
Improving agricultural practices.
Identifying contaminants in our drinking water like those
that threaten communities like Toms River in my State.
Protecting the public from water-borne illnesses at the
beach.
In 1997, there were over four thousand individual closings and
advisories at U.S. ocean, Great Lakes, and freshwater beaches. The vast
majority of these incidents were attributed to monitoring programs that
detected bacteria levels exceeding beach water-quality standards.
In addition to causing beach closures, every year, disease-carrying
pathogens cause thousands of illnesses including gastroenteritis,
dysentery, hepatitis, respiratory illness, and ear, nose, and throat
problems.
With its Beach Action Plan, EPA is assisting the States in
improving beach water quality. This is a good start.
As you know, Mr. Chairman, in every Congress since 1993, I have
introduced legislation to improve citizens Right-to-Know about the
contaminants that could turn their day at the beach into a visit to the
doctor.
My bill, cosponsored by fellow committee members Senators Lieberman
and Boxer, would require States to develop and implement water quality
criteria, monitoring, and public notification procedures for beach
goers.
This year, the House of Representatives wisely decided to pick up
on my idea and pass a bill that very closely resembles mine. Perhaps
they wanted to provide me with a legacy when I leave here. But whatever
the reason, I thank them for their hard work.
I hope that the committee will take up the legislation I introduced
and I hope we can have a lively debate on the merits of improving beach
water quality. Thank you.
______
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, members of the committee, thank you for the
opportunity to speak on the issue of clean water, an issue that is very
important to the State of Florida.
The Clean Water Action Plan presents a multi-agency approach to
water quality enhancement through watershed protection. The objectives
of the program are to improve information and citizens' right to know,
address polluted runoff, enhance natural resource stewardship, and
protect public health. The State of Florida has used a watershed
approach to water quality management since 1987, when the Florida
legislature established the Surface Water Improvement and Management
(SWIM) program. The SWIM program is implemented by Florida's Water
Management Districts, and sets priorities for protection and
restoration of the State's waters. Information from the SWIM program
was combined with information from other sources, including the Natural
Resource Conservation Service's Environmental Quality Incentives
Program, to complete the Unified Watershed Assessments requested as
part of the Clean Water Action Plan.
The Southeast Florida watershed, including the Everglades and their
associated drainages, was identified by the Unified Watershed
Assessment as a Category I Watershed Most in Need of Restoration. The
Everglades watershed is already the focus of several restoration
projects. In its historic natural condition, the basin was a vast,
continuous wetland. Water flowed slowly in a shallow sheet from Lake
Okeechobee south to Florida Bay. The basin has been extensively
modified from its historic condition, with thousands of miles of canals
and levees constructed over the last century. The area is currently the
subject of the Central and Southern Florida Project Restudy, conducted
by the Corps of Engineers together with the South Florida Water
Management District, as well as other Federal, State, and local
restoration efforts. The interagency partnerships developed in
conjunction with the Everglades restoration efforts are examples of the
type of cooperation called for in the Clean Water Action Plan.
I understand that some States have concerns about the
implementation of certain aspects of the Clean Water Action Plan, and I
look forward to hearing the comments of our witnesses today.
______
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
Thank you Mr. Chairman for holding this hearing to review the
progress made during the first year of implementation of the Clean
Water Action Plan. The Clean Water Action Plan, which was developed
during the 25th anniversary of the Clean Water Act, in 1997, is an
exciting strategy. It represents a nationwide commitment to redouble
our efforts to protect America's rivers, streams, lakes, and estuaries
for the fish, wildlife and people who depend on them. Few would dispute
that we made tremendous strides in improving and protecting the quality
of America's waters between 1972 and 1997. With that 25 years of
experience and the Clean Water Action Plan as a blueprint for our
future water quality improvement efforts, I believe we can achieve the
fishable and swimmable'' waters goal of the Clean Water Act.
Many aspects of the Clean Water Action Plan are encouraging. For
example, the watershed-based approach to assessing and protecting water
resources is an important step toward comprehensive and efficient use
of conservation resources. In addition, the broad participation of
citizens, industry, and local, State and Federal Governments in the
development of unified watershed assessments provides a model of how
stakeholder collaboration can help define and solve challenging
environmental dilemmas.
The State of Connecticut has made great strides in improving water
quality since passage of Connecticut's Clean Water Act in 1968. The
ongoing recovery and improvement of Long Island Sound is one great
success story. However, Connecticut is experiencing an era of
diminishing returns because many of its traditional programs have
solved the most obvious water quality problems. We now must balance
continuing needs of controlling point sources of pollution and
improvements of wastewater infrastructure, with new programs that
address runoff from more dispersed nonpoint sources.
One example of a straightforward problem that requires much more
attention is the water quality impairment caused by combined sewer
overflows. Combined sewer systems exist in many of Connecticut's older
cities including Norwalk, Bridgeport, New Haven, Hartford, and
Waterbury. Although the Connecticut Department of Environmental
Protection and municipalities are making progress on this problem, a
final solution will require much more time and money. It is important
that we recognize that we cannot abandon our commitment to the ongoing
efforts that have gotten us this far. Rather we must build on them and
solve the remaining problems as quickly and cost-effectively as
possible.
Nine Federal agencies are, and should be, involved in the Clean
Water Action Plan. For the Clean Water Action Plan to fulfill its
promise, it is imperative that these Federal agencies are funded so
that they can coordinate their efforts, fulfill their current
obligations and meet their Clean Water Action Plan obligations in a
timely manner. For example, the vitally important Connecticut DEP-U.S.
Geological Survey (USGS) cooperative stream gauging and monitoring
program is in a sustained decline due to insufficient funding of the
USGS stream gauging program. If we do not provide the funding so that
agencies can make the Clean Water Action Plan a priority, we will be
wasting an opportunity to take our water quality protection and
enhancement efforts to the next level.
In October 1998, the Connecticut Department of Environmental
Protection (DEP) and the USDA Natural Resource Conservation Service
(NRCS) completed the Unified Watershed Assessments'' of the State's
surface water resources as required by the Clean Water Action Plan. In
addition, Connecticut DEP developed a State watershed management
implementation strategy launched pilot watershed management projects
for the Quinnipiac, Naugatuck, Norwalk, and Sasco Creek watersheds.
Implementation of the Clean Water Action Plan is underway and working
in Connecticut.
Thanks to the hard work of many dedicated participants and the
vision provided by the Clean Water Action Plan, our second generation
of water quality improvement efforts hold great promise. I applaud the
efforts that have been made so far and will work to help ensure that
Congress makes the sustained investment necessary to put the Plan into
practice.
______
Statement of Carol M. Browner, Administrator, Environmental
Protection Agency
Good morning, Mr. Chairman and members of the committee. I am Carol
M. Browner, Administrator of the U.S. Environmental Protection Agency
(EPA). Thank you for your invitation to be here today and for the
opportunity to discuss the Clean Water Action Plan announced by
President Clinton and Vice President Gore in February of last year.
The Action Plan is a comprehensive blueprint for restoring and
protecting the Nation's water resources. It truly charts a course for
fulfilling the original goal of the Clean Water Act: ``fishable and
swimmable'' waters for all Americans.
i. water quality problems today
Past Progress and Current Problems
In the first quarter century of implementing the Clean Water Act,
America has made tremendous strides in cleaning up its rivers, lakes,
and coastal waters. In particular the Clean Water Act has stopped
billions of pounds of pollution from fouling the Nation's water,
greatly increasing the number of waterways safe for fishing and
swimming.
In communities across the country, restoration of local water
resources has had dramatic environmental, recreational, aesthetic and
economic benefits. Restoring clean water has generated jobs and
economic growth in recreation (including swimming, boating, sport
fishing and hunting), tourism, and commercial fishing and shellfishing
industries, among others.
Despite great progress, nearly 40 percent of the Nation's waterways
assessed by States are still unsafe for fishing and swimming, and
between 70,000 to 90,000 acres of wetlands are lost each year. Although
pollution from factories and sewage treatment plants, soil erosion, and
wetland losses have been dramatically reduced, the States identify
runoff from city streets, rural areas, and other sources degrading the
environment and putting drinking water at risk. We continue to lose
wetlands each year. Although the causes of some problems have been
abated, the consequences may still persist. Much of our historical
wetlands have been lost, and sediments contaminated with toxic runoff
and discharges decades ago now contaminate fish and complicate dredging
our ports.
After careful consideration of these problems the Administration
concluded that without the Clean Water Action Plan, implementation of
the existing clean water programs would not stop serious new threats to
public health, living resources, and the Nation's waterways,
particularly from polluted runoff. These programs did not have the
adequate strength, resources, and framework to finish the job of
restoring rivers, lakes, and coastal areas.
Addressing Today's Problems: Overview of the Clean Water Action Plan
In order to energize and re-orient existing programs to address
current and future pollution problems, and thereby fulfill the original
goals of the Clean Water Act, USDA and EPA, along with the Department
of the Interior, the Army Corps of Engineers, and the Commerce
Department's National Oceanographic and Atmospheric Administration, as
well as supporting agencies created the Clean Water Action Plan (The
Clean Water Action Plan: Restoring and Protecting America's Waters,
February 1998).
The Action Plan aims to achieve healthy waters through
collaborative public and private sector efforts on a watershed basis,
as well as through strengthening and expanding our existing clean water
programs, to:
protect public health;
enhance natural resources stewardship;
strengthen polluted runoff standards and controls; and
improve information and citizens' right to know.
As a framework for this collaboration, the Action Plan was
developed through a cooperative budget planning effort USDA and EPA,
and the other lead agencies. The process for developing the Action Plan
included a Federal Register notice soliciting public comment on what
should be in it. The Federal agencies then held three ``listening
sessions'' around the country to elicit public comment, and the
agencies also had numerous informal meetings with a broad range of
groups, including States, tribes, local governments, non-governmental
organizations, and others.
In my remarks today, I want to highlight two aspects of the Action
Plan that I believe exemplify the vision it provides for the diverse
efforts to restore and protect water quality into the 21st century:
the commitment to restore and protect water resources on a
watershed basis; and
the commitment to intergovernmental partnership in meeting
water resource goals.
I also want to briefly raise some of our accomplishments over the
past year and the major challenges we have before us.
ii. clean water action plan: key themes
A Watershed Approach: Led by States, Tribes, and Local Organizations
The causes of pollution problems affecting our waters can vary
greatly from region-to-region and from watershed-to-watershed. A ``one-
size-fits-all'' approach is not the most effective strategy for solving
many of today's water resource problems.
A ``watershed approach'' to implementing clean water programs is at
the heart of the Action Plan. The Plan lays out a vision for Federal
agencies, in conjunction with State, tribal, local governments, and the
private and public sectors, to tailor their efforts to the particular
needs of individual watersheds, assessing the full range of clean water
problems, and identifying solutions. Locally led conservation, nurtured
and supported by Federal and State resource conservation agencies, is a
good example of a ``watershed approach'' envisioned by the Action Plan.
In addition, the Action Plan tackles problems, such as nutrient
over-enrichment and sedimentation, that are widespread and contribute
to interstate impairments. For each State or watershed council to try
to tackle them in isolation would be neither efficient nor effective.
Existing national authorities and programs need to help localized
efforts address these problems, for example, through technical
assistance, research, demonstrations, monitoring, public information,
development of water quality criteria, effluent guidelines and
permitting strategies. The Action Plan calls for strengthening these
national tools.
Watershed Restoration
The Action Plan envisions States and Tribes playing the lead role
in conducting assessments to determine which watersheds are not meeting
clean water goals, and then in identifying watersheds that are
priorities for restoration through the development of Watershed
Restoration Action Strategies. The Action Plan calls for broadly
participatory efforts to address place-specific problems and define the
unique solutions appropriate for each watershed. These watershed
strategies are not to be top-down, Federal strategies. Existing Federal
programs can then be focused on Watershed Restoration Action
Strategies. For example, at EPA we will target the incremental Section
319 funds (an additional $100 million) to support development and
implementation of Action Strategies in priority watersheds.
Watershed Management
Successful models of public-private partnerships for watershed
management can be found around the country in hundreds of smaller
watersheds, as well as in such nationally-visible places as the
Chesapeake Bay or the Great Lakes, and in more than 2 dozen estuaries
designated under the National Estuary Program established by section
320 of the Clean Water Act. In EPA's Adopt-Your-Watershed program, we
have identified more than 4,000 groups working to protect and restore
their watersheds.
For all watersheds, regardless of their degree of impairment, the
Action Plan identifies ways in which the Federal agencies can help
locally-led groups work to help ensure clean water and a healthy
watershed. For example, the internet-based Watershed Information
Network (WIN), a coordinated, multi-agency undertaking, will allow the
public to access consolidated watershed information. At EPA we are also
awarding ``watershed assistance grants'' to some community
organizations, similar to the technical assistance grants under the
superfund program, to support local involvement in designing and
implementing solutions.
Inter-governmental Partnerships
The second critical aspect of the Action Plan which I'd like to
emphasize is the inter-governmental coordination that it has
engendered. We are working smarter, avoiding duplication, and getting
the most out of programs and resources thanks to the Action Plan.
Cooperation Across Federal Agencies
Coordination across the Federal agencies has been extraordinary in
both the development and implementation of the Action Plan.
At the national level, teams composed of representatives from
various agencies cooperate closely to carry out the Plan's action
items, and senior managers of the nine Action Plan partner agencies
provide oversight and direction to the overall Action Plan
implementation. These managers and staff are becoming increasingly
knowledgeable about each others' programs, and they are making
decisions about how their programs can work together cooperatively.
In addition to this interagency cooperation at the national level,
12 Federal Coordination Teams have been established at the ``regional''
level, with representatives from the nine partner agencies, and others,
to help in Action Plan implementation. Their role is two-fold: (1) to
help coordinate Federal activities in specific watersheds and (2) to
identify resources (funding, data, technical expertise, etc.) that can
help other levels of government and citizen groups addressing water
issues on a watershed basis.
State and Tribal Partnerships
As the Federal agencies implement the Action Plan, we're reaching
out to other levels of government, but especially to States and Tribes,
because of the lead role they play in clean water programs--and we've
been seeing a cooperative response. Indeed, the Action Plan asked
States and Tribes to take the lead in a cornerstone of the Action Plan:
the development of Unified Watershed Assessments. Through their
assessments, the States and Tribes identify degraded water bodies and
determine which of their watersheds are priorities for watershed
restoration efforts. We are very pleased to note that each of the 50
States submitted Unified Watershed Assessments by the end of 1998, as
did many Tribes. States are now developing workplans for the new $100
million in Section 319 funds to support Watershed Restoration Action
Strategies in those watersheds.
Involvement of the Public and Stakeholders
The Federal agencies responsible for Action Plan implementation are
committed to involving other levels of government, special units of
government, such as conservation districts and regional councils of
governments, and the public in carrying out individual action items in
the Action Plan.
Each of the Action Plan's 12 Federal Coordination Teams will help
sponsor ``roundtables''--forums for bringing diverse stakeholders
together to share information, experience, and expertise regarding
watershed protection. All of the governmental agencies (Federal, State,
tribal, and local) can play key roles in these cooperative ventures, as
can the general public, citizen groups, and the private sector.
Likewise, EPA and the other Federal agencies encourage States and
Tribes to work with other levels of government and with the public and
private sector interests in the development of Watershed Restoration
Action Strategies.
The public and private sectors also have opportunities to become
involved in implementation of the rest of the Action Plan's 111
individual action items. The Federal agencies responsible for the
Action Plan maintain a strong commitment to involving the public in
these actions, whether the action items are regulatory or voluntary in
nature. Regulatory actions will include appropriate notice and comment
in accordance with the Administrative Procedures Act. Beyond this,
however, we are affording many opportunities to guide further
implementation of the Action Plan. The Clean Water Action Plan web site
(www.cleanwater.gov), a collaborative, cross-agency effort managed by
the U.S. Geological Survey, provides regularly updated information on
all key actions and opportunities for comment or other involvement.
iii. accomplishments and challenges
Accomplishments of the First Year
We've only completed 1 year of the Clean Water Action Plan, but
already a great deal has been accomplished at various levels of
government. I'd like to mention just a few of these accomplishments:
1. Although I've already mentioned Unified Watershed Assessments, I
want to emphasize their importance as a means to draw together the full
range of available information on the health of watersheds and to set
priorities for funding watershed restoration, USDA and EPA cooperated
in providing guidance to States and Tribes for this action item. All 50
States and over 76 Tribal leaders rose to the challenge. We at EPA are
grateful for their leadership.
2. An Interagency Emergency Response Plan developed by various
Federal agencies including EPA and lead by NOAA, was issued last year
to coordinate Federal assistance to State and local governments in
response to outbreaks of harmful algal blooms, such as Pfiesteria. The
plan guided our response to last year's Pfiesteria outbreak in North
Carolina, and it will continue to be refined and expanded.
3. An Action Plan for Beaches and Recreational Waters was issued by
EPA in March 1999. It focuses on three key themes: (1) strengthening
beach programs and water quality standards; (2) informing the public
about recreational water quality; and (3) conducting research to
improve the scientific basis for beach programs. One element of the
plan, the BEACH WATCH web site, is a new Internet data base listing
beach closings and advisories. It contains the results of the first
national Beach Health Protection Survey covering approximately 60
percent of coastal and Great Lakes beaches, and it will be supplemented
in future iterations with information on the remaining coastal beaches
and on in-land beaches. The next phase of the Beach Action Plan will
integrate EPA activities with those of agencies such as NOAA, USGS, the
Centers for Disease Control and Prevention, and State environmental and
public health departments.
4. USDA and EPA have cooperated in the development of an Animal
Feeding Operations (AFO) Strategy announced on March 9 of this year to
control polluted runoff from cattle, dairy, poultry, and hog farms. The
strategy is aimed at reducing pollution while ensuring the long-term
sustainability of livestock production. The strategy establishes a
national expectation that all AFOs develop and implement comprehensive
nutrient management plans by 2009. We estimate that 95 percent of all
AFOs will be encouraged to implement management plans on a voluntary
basis, while the remaining 5 percent will be required to develop
management plans as part of a permit issued under the Clean Water Act's
National Pollutant Discharge Elimination System (NPDES). The AFOs
requiring permits would be: the largest AFOs; AFOs with unacceptable
conditions such as direct discharges; and AFOs that are significant
contributors to water quality impairment in a watershed.
5. The Watershed Information Network (WIN), an interagency effort,
is now operational on the Internet and accessible to the public as a
prototype, either through the Clean Water Action Plan site maintained
by USGS or through EPA's web site. As a multi-agency road map to
watershed programs and services, it can provide communities with
information needed to help them protect and restore water quality.
6. The 5-Star Restoration Grants Program has attracted great
attention from local community leaders. Over 300 applications,
involving over 1,500 grassroots organizations in 47 States and from
several tribes, have been received to compete for 40 grants under this
5-Star program. NOAA's National Marine Fisheries Service has
participated as a Federal partner for the grant recipients in coastal
communities.
7. States and Territories are well positioned today to implement
management measures needed to protect coastal waters from nonpoint
source pollution. Most States have already received approval from EPA
and NOAA for the majority of the management measures addressed by their
Coastal Nonpoint Source Programs required by the Coastal Zone Act
Reauthorization Amendments of 1990 (CZARA). Thus, they are eligible to
use funds available under both the Clean Water Act and the Coastal Zone
Management Act to help implement these measures. At the same time, we
are working with the States and NOAA's National Ocean Service to secure
final, complete approval for many of the State programs by the end of
1999. Even where full approval is not met by the end of the year, we
expect significant improvement in their nonpoint programs as they work
toward final approval.
8. In partnership with the River Network, EPA established the
Watershed Assistance Grants Program to support the organizational
development and long term effectiveness of locally-based watershed
partnerships. Watershed Assistance Grants will be awarded to diverse
partnerships who want to work together to assess the needs in their
watersheds and devise creative, grassroots-grown solutions to the
problems.
9. Many other accomplishments are highlighted in the report
(entitled Clean Water Action Plan: the First Year; the Future) prepared
to mark the first year anniversary of the Action Plan. I am attaching a
copy of this report as a source of information on the many
accomplishments, and future plans, of all the Federal agencies
cooperating and coordinating in the Action Plan's implementation.
Challenges for the Future
The Clean Water Action Plan provides a vision of clean water and
healthy ecosystems. By focusing on restoration and protection of
watersheds we can more effectively implement clean water programs. By
continuing to support partnerships across all levels of government, and
with other stakeholders, we can foster enhanced stewardship of the
Nation's waters. We have accomplished a great deal in 1 year, but much
important work remains to be done.
Under the Action Plan, there are many specific actions which pose
their own unique challenges. A few examples of these challenges
include:
States and tribes, with the support of Federal agencies
and our other public and private partners, face the challenge of
getting Watershed Restoration Action Strategies developed and
implemented.
USDA and EPA have issued the Unified National Strategy for
Animal Feeding Operations, but now we, along with States, face the
challenge of implementing this largely voluntary program, while also
issuing permits as appropriate.
EPA has prepared a strategy for development and
implementation of nutrient criteria and standards tailored to specific
needs of different types of water bodies. We now must coordinate across
several Federal agencies and work with scientists to prepare guidance
and criteria, and then assist States and tribes in the adoption of the
criteria into their water quality standards.
Additionally, as we work on these and the other specific action
items, we face challenges for the overall management of Action Plan.
Among the broad challenges we face, perhaps most noteworthy are:
the job of effectively involving the public in all aspects
of implementation of specific action items in the plan;
the challenge of using our limited dollars efficiently and
wisely, knowing that the needs and demands are great; and
collectively determining how best to measure environmental
results from watershed-level projects, and how to make those results
known to national policymakers in the Federal agencies and in Congress.
Mr. Chairman, this concludes my statement. I am happy to answer any
questions you may have.
______
Responses by Carol M. Browner to Additional Questions from
Senator Chafee
Question 1. The primary program for addressing polluted runoff
under the Clean Water Act is section 319. A 1997 report by EPA's
Inspector General expressed serious concerns with Region 8's oversight
of State section 319 programs. Region 8 did not require States to
update their 319 management plans, and sent unclear messages to the
State by failing to enforce program requirements. The report concluded
that Region 8's oversight was inadequate to determine ``if priority
projects were still being funded and projects were strengthening and
balancing overall management plan goals and milestones.''
To what degree do the problems facing Region 8 reflect overall
weaknesses in the section 319 program?
Response. The basic issues raised in the Inspector General's report
are being addressed by program improvements nationwide. EPA and the
States have recognized for many years that there is a need to improve
and expedite implementation of the overall nonpoint source program. In
1995 and 1996, EPA and the States worked closely and cooperatively
together to develop a set of nine key elements which characterize an
effective State nonpoint source program. These nine key elements are
set forth in detail in section 319 program and grants guidance
published by EPA in May 1996; that guidance was endorsed in writing by
the Association of State and Interstate Water Pollution Control
Administrators. At this point, virtually every State in the United
States is working expeditiously in cooperation with EPA to upgrade its
State 319 management program. The Agency expects this process to be
complete in fiscal year 2000.
Moreover, States have made considerable progress in the past 3
years to bring focus to their selection of projects for implementation
and funding. Most States are focusing their nonpoint source
implementation activities on their top priorities, using their section
303(d) lists of impaired waters, Unified Watershed Assessments, and
similar tools to set their implementation priorities. States are
further using their nonpoint source program upgrades to improve their
prioritization processes. We are continuing to work with the States as
they complete their program upgrades to assure that the programs have
clear management goals and milestones that are in turn supported by
implementation processes.
Question 2a. Section 319 and EPA guidance documents require States
to set measurable goals for their nonpoint source programs. States must
also submit annual reports to EPA detailing their progress in meeting
these goals.
Could you please share with the committee some of the results of
these annual reports?
Response. EPA's May 1996 nonpoint source program and grants
guidance specifically establishes as Key Element #1 of a successful
nonpoint source program that ``the State program contains explicit
short- and long-term goals, objectives and strategies to protect
surface and ground water.'' The States are currently working to upgrade
their programs to meet each of the nine key elements. A critical
element of upgrading those programs will be to include such explicit
goals, objectives and strategies in their programs.
Each year, the 56 States and territories submit annual reports to
EPA Regional Offices on their progress in meeting the schedule of
milestones set forth in their nonpoint source programs and, to the
extent information is available, reductions in nonpoint source
pollutant loadings and improvement in water quality. To date, the
information available indicates increasing progress in States' nonpoint
pollution control efforts. For example, EPA has published two status
reports in recent years, Section 319 Success Stories (Nov. 1994) and
Section 319 Success Stories: Volume 11 (October 1997) that provide
evidence of progress on all fronts: trout returning to streams;
improvement of fish habitats; shellfish beds reopening; reduced
pollutant loadings in project areas; a proliferation of watershed
partnerships; and the enactment of new State-enforceable authorities.
Question 2b. Do you have an estimate for the number of impaired
water bodies that are now in compliance with water quality standards as
a result of section 319 projects?
Response. Although we have anecdotal information as described
above, we do not have a national estimate for the number of impaired
water bodies that are now in compliance with water quality standards as
a result of section 319 projects.
EPA recognizes the need to improve our ability to account
nationally for the extent and rate of water quality improvements being
achieved as a result of State NPS program implementation, including
those watersheds with NPS management efforts supported by section 319
monies. EPA intends to work with our State partners during the coming
year to develop appropriate measures to assure that water quality
improvements from the implementation of nonpoint source programs is
documented and made publicly available.
Question 3a. One of the cornerstones of the President's Clean Water
Action Plan is the watershed approach to environmental protection. This
approach is embodied in Watershed Restoration Action Strategies. At the
core of these action strategies are the development of total maximum
daily loads or TMDLs. EPA and the States will need to calculate
approximately 40,000 TMDLs.
What is EPA timetable for completing these calculations?
Response. Each State, not EPA, completes TMDLs for impaired waters
on the State's section 303(d) list. EPA's current guidance asks each
State to commit to an appropriate schedule to complete TMDLs for all
waters on their most recent section 303(d) list, beginning with the
1998 list. Each State schedule should reflect the State's own priority
ranking of the listed waters and be integrated with the Environmental
Performance Partnership Agreement process. These State schedules
normally extend from 8 to 13 years in length, but could be shorter or
slightly longer depending on State-specific factors. These factors may
include: number of impaired segments; extent of impairments (river
miles, lakes acres, etc.); number and relative complexity of the TMDLs;
number and similarities or differences among the source categories to
be allocated; availability of monitoring data or models; and relative
significance of the environmental harm or threat.
Question 3b. What steps is the Agency taking to assist States in
making their calculations?
Response. In addition to financial support [see answer to part (d)
of this question below], Regional EPA TMDL staff work directly with
States to assist with their TMDL needs. We have helped the States use
GIS technology to map their 303(d)-listed waterbodies. We have
developed and distributed to States (and others) a user-friendly, CD-
rom based, TMDL model called BASINS that facilitates fairly rapid
calculation of TMDLs, using either locally-available data or
nationally-derived values. We are developing technical protocols for
establishing TMDLs for nutrients, clean sediments, and pathogens. And,
finally, EPA is also facilitating the States' use of all available
data, including data from USGS and NOAA.
Question 3c. Does EPA have a national cost estimate for calculating
all the necessary TMDLs?
Response. We are working to develop an analytically rigorous
estimate of the total costs to develop TMDLs for all the waters and
causes currently listed on all of the 1998 State section 303(d) lists.
We will complete this analysis in time to release it with the proposed
revision to EPA's TMDL rule in fiscal year 1999.
Question 3d. Approximately how much total funding has the Agency
allocated to the TMDL program?
Response. Resources supplementing State TMDL efforts are found in
State water pollution control grants under Clean Water Act Sec. 106,
Sec. 319 (State nonpoint source grants), and in EPA's operating
resources. Section 106 grants, for which the Agency has requested
$115.5 million in 2000, support a wide range of water pollution control
activities including permitting, water quality planning and standard
setting, assessment and monitoring, and TMDL development and
implementation. While EPA does not generally request (nor allocate to
States, Tribes or interState agencies) specific resource levels for the
various eligible activities within the Sec. 106 budget, EPA's 1998
request included an increase of $5 million to support State TMDL
activities, which has been sustained in the fiscal year 1999 and fiscal
year 2000 budgets. States can also use the $20 million increase to
section 106 grants in fiscal year 1999 for TMDL activities. This
funding level was also continued in the fiscal year 2000 Budget. We
continue to emphasize the importance of establishing and maintaining
increasingly robust TMDL activities from within available Sec. 106
resources.
In addition, beginning in 1999, States are permitted to use up to
20 percent of their Sec. 319 allocation to upgrade and refine their
nonpoint source programs and assessments. A prominent example of
potentially eligible Sec. 319 activities is the development of TMDLs to
help implement Watershed Restoration Action Strategies developed by
States for high-priority watersheds. At $200 million appropriated for
section 319 in fiscal year 1999, this policy makes available at a
State's discretion approximately $40 million for such high-priority
TMDLs. Aside from this direct State grant funding, EPA also requests
resources to be used by EPA in direct and indirect support of States'
TMDL efforts. At approximately $15 million in the 2000 request, these
resources support technical assistance on specific TMDLs (primarily via
expert contractors who work directly with States), training of State
personnel, development of national guidance and policy, and
backstopping State efforts as necessary to meet TMDL development
deadlines. In addition, EPA just submitted a reprogramming request to
increase EPA TMDL funding by $12 million in fiscal year 1999.
Question 3e. How does EPA intend to encourage nonpoint sources of
pollution to implement voluntary best management practices?
Response. Most States use their section 319 NPS grants to encourage
voluntary NPS implementation by supporting education, technical
assistance and cost-sharing that helps farmers and others install and
demonstrate best management practices. In addition, States are
increasingly making use of the broad flexibility of the SRF program to
support implementation of nonpoint source programs. Currently, 27
States are actively using their SRF programs to fund these kinds of
projects. EPA and States are also working closely with USDA and other
Federal agencies to use existing Federal natural resource programs and
funding to support and encourage voluntary implementation of NPS best
management practices that address priority State water quality
problems.
Nonpoint sources implement the load allocations within TMDLs
through a wide variety of State, local, Tribal, and Federal programs
(which may be regulatory, non-regulatory, or incentive-based, depending
on the program), as well as voluntary action by committed citizens. The
Clean Water Action Plan, including over 100 specific key actions,
outlines EPA and other Federal Agencies commitments to work with States
and others to encourage and facilitate all needed watershed and NPS
management activities, including accelerated implementation of
voluntary best management practices. These include, for example,
commitments by EPA to develop water quality criteria for nutrients and
commitments by numerous other Federal agencies such as NOAA and USGS to
increase water quality monitoring.
Question 3f. What happens if nonpoint sources are unable or
unwilling to implement voluntary controls, will EPA seek to extract
increased reductions from existing point sources?
Response. TMDLs and the associated decisions about the allocation
of pollution reductions are developed primarily by the States. When a
TMDL specifies that loads from nonpoint sources need to be reduced to
meet water quality standards, the State provides reasonable assurances
that nonpoint source load reductions will be achieved. These assurances
may be non-regulatory, regulatory, or incentive-based, consistent with
applicable laws and programs. If nonpoint sources are unable or
unwilling to implement voluntary controls, then the State may choose to
secure the needed reductions from the nonpoint sources using State or
local authorities or from the point sources using NPDES permits.
Question 4a. The EPA/USDA Unified Strategy for Animal Feeding
Operations lays out a very ambitious permitting goal for Concentrated
Animal Feeding Operations. By January of 2000, EPA expects to have
States permit an additional 15,000-20,000 facilities.
What type of assistance is EPA providing to the States to help them
accomplish this goal?
Response. As described in the Unified AFO Strategy and under the
current regulations, EPA estimates that a total of 15,000-20,000 CAFOs
will ultimately need to have NPDES permits to address the Strategy's
three permitting priorities: (1) facilities with significant manure
production; (2) facilities with unacceptable conditions; and (3)
facilities that are significantly contributing to water quality
impairment. There are approximately 10,000 CAFOs with significant
manure production. The other two permitting priorities (unacceptable
conditions and significant contributors to water quality impairment)
include approximately 5,000-10,000 CAFOs.
The Strategy discusses the short-term objective of issuing general
NPDES permits to cover most CAFOs with significant manure production by
January 2000. Since individual permits may be more appropriate for some
CAFOs with significant manure production, the estimate of the CAFOs
that need to have general permit coverage by January 2000 will be
somewhat less than 10,000. The remaining CAFOs with unacceptable
conditions or that are significantly contributing to water quality
impairment will be covered by NPDES permits by about 2002.
Although EPA is emphasizing these permitting priorities, it is
important to note that CAFOs have been required to have NPDES permits
since 1976. There are many reasons why CAFO permits have not been
issued over the years, including resource constraints.
EPA received an increase for fiscal year 1999 of $20 million in
Clean Water Act (CWA) section 106 grants for State and Tribal water
quality program administration, and requested continuation of the
increase in section 106 grants for fiscal year 2000 as well. These
additional funds can be used by States for programs (including
inspections) to address concentrated animal feeding operations or
CAFOs, which are regulated under the CWA permitting program.
Question 4b. What is your estimate for the number of facilities
that will need individual permits?
Response. We estimate that only about 5 percent of the entire
universe of CAFOs will ultimately need individual NPDES permits.
Question 5a. As a condition of their permit, all CAFOs will be
required to have a comprehensive nutrient management plan. These plans
must be developed on a site specific basis. EPA is relying on the NRCS
to provide technical assistance in developing these plans. NRCS is
currently working on a draft nutrient management plan, and NRCS has
informed my staff that it will take at least a year to train field
personnel to develop the plans. NRCS also estimates a reduction in
technical assistance staff from previous years.
Will EPA assist NRCS in developing 15,000 nutrient management plans
in a reasonable timeframe?
Response. Under the current regulations, EPA does expect that
approximately 15,000--20,000 CAFOs will be required through NPDES
permits to develop and implement site-specific CNMPs. Most will be
covered under general NPDES permits. Large CAFOs will be a priority for
permitting under these general permits. EPA believes that many large
operations will not require extensive assistance from USDA for
development of these CNMPs. Feedback from site visits and the extensive
outreach from the national listening sessions and other outreach
efforts during development of the AFO Strategy suggests that large
CAFOs may have access to expertise, including from the private sector,
for development of CNMPs. EPA will help CAFOs to identify such sources
of assistance.
Question 5b. What is the estimated time between issuance of general
permit and the development of a site specific nutrient management plan?
Response. The schedules and timeframes for CAFOs to develop and
implement CNMPs may vary somewhat from State-to-State, and should be
appropriate to the circumstances in each State. While EPA is still
developing the CAFO permitting guidance, we expect that CAFOs may have
12-18 months to develop a CNMP and an additional 12-24 months to
achieve full implementation. (Under the current regulatory framework,
CAFOs are expected to comply with existing permits and the existing
effluent limitations guidelines for feedlots.)
Question 6a. The Action Plan argues that existing programs under
the Clean Water Act lack the ``strength, resources and framework to
finish the job of restoring our rivers, lakes and coastal areas.'' This
assertion is particularly surprising in light of the heavy reliance on
existing programs in the Action Plan.
If EPA feels the Clean Water Act is broken, why isn't the Agency
proposing language to fix it?
Response. The Administration does not believe that the Clean Water
Act is broken. In fact, the Clean Water Act created some of the most
successful environmental programs the Nation has. The quote above was
not intended to disparage the Clean Water Act, but to highlight the
fact that more needs to be done to make the best use of the authorities
for protecting and restoring water quality by the Clean Water Act.
Question 6b. What are the specific areas in which EPA feels its
authority is too limited and the Act needs to be strengthened?
Response. The Administration does believe that the Clean Water Act
should be reauthorized. In fact, the Administration has made specific
proposals beginning with President Clinton's Clean Water Initiative in
February 1994. The President has recently challenged Congress to take
up reauthorization this year and is committed to working closely with
the relevant committees to find ways to strengthen the existing
statute.
______
Responses by Carol M. Browner to Additional Questions from
Senator Lieberman
Question 1. EPA estimates that approximately 60 percent of the
pollution to our waters comes from polluted runoff. The CWAP recognizes
that over 50 percent of the Nation lives within coastal watershed
areas, contributing substantially to the problems associated with
polluted runoff.
How do the agencies expect to address the issue of polluted runoff
through existing enforceable programs, such as 6217 program under the
Coastal Zone Management Act? Already, States with coastal zone
management programs like Connecticut are eligible for 6217 grant funds.
Unfortunately, historic funding has been inadequate. For example, the
estimated fiscal year 1999 allotment for the 6217 program in
Connecticut is only $68,000.
The Administration has proposed that States have the option of
using up to 20 percent of fiscal year 2000 Clean Water State Revolving
Funds as grants for polluted runoff projects. This is a wonderful
concept, however, EPA already currently grants polluted runoff money to
the States under section 319. At least for coastal States, why not
provide the nonpoint money for 6217 instead of for the section 319
grants, since its provisions are enforceable and the money is based on
comprehensive management plans approved by EPA?
Response. EPA believes that all States will most effectively
prevent and control nonpoint source pollution through a variety of
programs, including coastal management programs in coastal States,
through an appropriate mix of voluntary programs and regulatory
mechanisms. To this end, the recently published Almanac of Enforceable
State Laws to Control Nonpoint Source Water Pollution (Environmental
Law Institute, 1998), which was commissioned by EPA, provides guidance
to States and other interested users describing existing and potential
models of enforceable authority related to nonpoint source pollution.
Almost all of the relevant States have decided to apply their
enforceable programs to the entire State, not just the coastal areas.
With regard to the section 6217 coastal nonpoint program, EPA and
the National Oceanic and Atmospheric Administration (NOAA), as co-
administrators of the coastal nonpoint program, are continuing to work
with coastal States to encourage them to develop fully-approvable
programs. In October 1998, EPA and NOAA adopted new administrative
flexibility for the program that will assist States in achieving that
goal. This flexibility will allow States to receive full approval of
approaches that include general enforceable authorities when combined
with voluntary and incentive programs to encourage implementation of
nonpoint pollution controls. To ensure that these approaches are
effective, the States are required to describe how the agency
implementing the voluntary and incentive programs will work with the
enforcement agency to achieve a State-established implementation
timetable.
With regard to funding, States may use their section 319 funds to
address both coastal and non-coastal nonpoint source pollution, and
have the discretion to choose the watersheds within the State where
they will focus their implementation activities. Consistent with the
section 319 funding guidance, EPA expects the States to focus their
section 319 funds to address their highest-priority waters, i.e., those
listed by the State as impaired under section 303(d) of the Clean Water
Act; those identified by the State as being in greatest need of
restoration under the State's Unified Watershed Assessment; and those
high-quality waters that are at greatest risk of impairment. These will
generally include both coastal and non-coastal waters, but the relative
balance will vary from State to State.
Funding under section 6217 has been limited. Since 1992, Congress
has appropriated approximately $19 million to the 29 coastal States and
territories developing coastal nonpoint programs. Nevertheless, States
have made significant progress--all 29 States and territories received
conditional approval of their programs by the end of June 1998. Section
6217 was designed to support the development of coastal nonpoint
programs. Under the statute, implementation of those programs was to
rely on funding under both section 319 of the Clean Water Act and
section 306 of the Coastal Zone Management Act (CZMA). Under the
Administration's proposal for the reauthorization of the CZMA,
increased authorizations for section 306 would provide this support.
Question 2. We are hearing some resistance today to the concept of
watershed assessments of water quality. In my State, however, we have
had real success in assessing water quality and developing
comprehensive management plans. In fact, we find it necessary to work
across State lines in order to protect and restore the most significant
watershed in our State, the Connecticut River. In your view, what are
the benefits of the unified watershed approach and what are the
limitations of State-based water programs?
Response. The main purpose of the Clean Water Action Plan is to
identify and restore those rivers, lakes, coastal waters, and wetlands
that are still not meeting water quality and other natural resource
goals, including the goal of fishable and swimmable waters. To hasten
the restoration of the Nation's waterways, the Clean Water Action Plan
makes best use of available restoration dollars by putting them to work
in the watersheds with greatest need, i.e., the priority watersheds for
restoration designated by the States and Tribes.
This approach reinforces good work underway, such as Connecticut's
efforts to restore the Connecticut RiverWatershed. Moreover, this
approach helps align Federal resources and programs with State, Tribal
and local objectives. By requiring all Federal agencies to agree on
policies and priorities under the Action Plan, for example, Federal
agencies can help States and Tribes achieve even greater results than
they might have been able with their individual efforts. Additionally,
State and Tribal processes for preparing Unified Watershed Assessments
and Watershed Restoration Action Strategies are highly inclusive and
help promote restoration of watersheds which cross State and Tribal
boundaries.
A major benefit of the Unified Watershed Assessments is to use the
States priorities as the basis for coordinating restoration. Rather
than supplant individual State and Tribal efforts, the Action Plan
seeks to help raise the visibility of the priorities set by the States
and Tribes and ensure that the available resources are directed to
those priorities.
Question 3. Polluted runoff contributes to the problem of
contaminated sediments, and complicates the dredging that is required
to maintain safe and functional ports and harbors. I understand that
the CWAP includes demonstration projects that are designed to implement
new ``state-of-the-art'' technology that can be used to decontaminate
sediment. In Connecticut, additional funding is needed to reduce
sources of contaminated materials, develop cost-effective
decontamination strategies, and maintain safe long-term disposal sites.
What funds are available to address these problems, to study the
contamination sources, and to develop cost-effective sediment
decontamination strategies?
Response. The fiscal year 2000 President's Budget request contains
$1,733,600 to manage the Agency's Contaminated Sediment program,
including $750,000 to fund the demonstration projects described in the
Clean Water Action Plan (CWAP). The Agency has eight qualifying
candidate projects from which the five Clean Water Action Plan
demonstration projects are being selected. Agency funding is provided
to expand or enhance the goals of the selected projects and transfer
successful approaches to other sites across the Nation. Final decisions
on the five demonstration projects will be made in the near future. Our
primary goal is to assure that the five CWAP demonstration projects are
completed successfully and contribute to our knowledge about
contaminated sediment remediation.
Question 4. Atmospheric deposition of mercury has contributed to
Connecticut's fish contamination problem. Our State has issued
Statewide fish advisories for mercury in freshwater fish. Connecticut's
ongoing effort to collect data on mercury contamination sources could
benefit from Federal support. What is your view of the Federal role in
addressing atmospheric deposition?
Response. Mercury is one of the priority persistent,
bioaccumulative, and toxic (PBT) pollutants covered by EPA's PBT
strategy. The national action plan for mercury includes a reduction of
mercury air emissions from municipal waste combustors and medical waste
incinerators by 50 percent from 1990 levels. EPA is also working to
better understand the impacts of air deposition of mercury and other
substances on water quality and to better understand how we can reduce
emissions, where necessary, using our current authorities.
In the July 1998 Federal Advisory Committee Report on the Total
Maximum Daily Load (TMDL) Program, the Committee recognized that
atmospheric deposition of toxic pollutants (such as mercury and lead)
or of nutrients (such as nitrogen) may contribute to water quality
impairments in many waterbodies. For example, in 1996, States estimated
that approximately 2,000 waterbodies were polluted by mercury and other
metals, with the pollutants coming from air sources in many cases. The
Federal Advisory Committee also recognized that waters impaired by
atmospheric deposition pose some unique challenges to environmental
agencies. These challenges include attributing atmospheric loadings to
specific sources, which could be outside a given State's boundaries,
and identifying which State or Federal authorities can be used to
address air emissions.
In an attempt to address these challenges, EPA has begun a pilot
project that will examine how to address air sources of mercury through
the TMDL program. The pilot project will examine methods for
determining the relative contributions of mercury air emissions to
specific waterbodies, and identifying how much deposition comes from
local and distant sources. It will also assess how Federal and State
air and water programs can work together to reduce emissions. The pilot
is being conducted in Devil's Lake, in Wisconsin, and a portion of the
Florida Everglades, and involves close coordination with the two
States. The goal is to help States develop TMDLs for waterbodies
impaired by air sources. Under the TMDL program, a State identifies
specific waterbodies that do not meet water quality standards, and
establishes pollution reduction targets for meeting the standards. EPA
plans to issue the findings of this pilot project in early 2000.
______
Responses by Carol M. Browner to Additional Questions from
Senator Thomas
Question 1. Is the EPA currently conducting an effort which,
according to an EPA source, is for the purpose of intensifying efforts
to find concrete ways to measure nonpoint source contributions to water
pollution?
Question 2. If the EPA is currently involved in the above mentioned
effort, please explain what methodologies are being used to better
determine the impact of nonpoint sources to water degradation. Why did
the Agency not promote a similar effort prior to releasing the Clean
Water Action Plan?
Responses 1 and 2. EPA has for many years been engaged in a variety
of efforts to improve our ability to measure nonpoint source
contributions to water pollution. These efforts range from continuing
efforts to improve our modeling capabilities, our monitoring tools, and
the range of environmental indicators that can be used to measure
success in our nonpoint source pollution control efforts. For example,
EPA established in 1991 a National Nonpoint Source Monitoring Program
that is focusing intensive long-term monitoring on over 20 projects, in
order to assess the effectiveness of various nonpoint source control
practices in reducing pollution from a variety of sources in a variety
of geographic settings. In addition, we have supported and are
continuing to support many efforts throughout the United States to
improve our methods of calculating or estimating the pollutant
reduction effectiveness of a variety of best management practices and
programs.
As required by the Government Performance and Results Act, EPA has
established goals for its nonpoint source program as well as for other
aspects of its national water quality program. One goal is to reduce
nutrient loadings. To improve our ability to measure success in this
regard during the coming years, we have entered into a cooperative
effort with the U.S. Geological Survey to use their data and techniques
to improve our capability to assess nutrient loadings at representative
study sites.
We intend to continue to refine existing models and measurement
tools, and develop new ones as appropriate over time. These continuous
improvement efforts will occur concurrently with our continued
development and implementation of programs and initiatives, such as
those included in the Clean Water Action Plan, that have proven value
in helping to reduce known nonpoint source pollution.
Question 3. The National Water Quality Inventory (NWQI) and the
Clean Water Action Plan (CWAP) both State that only 19 percent of the
Nation's rivers and streams have been surveyed. Of the 19 percent
surveyed, only 36 percent have been deemed impaired. According to the
NWQI, actual water quality was collected on slightly over half (51
percent) of these impaired waters. How do you justify the need for a
comprehensive Action Plan when water quality data was collected on only
roughly 3.5 percent of the Nation's waters?
Response. We believe that the current State section 305(b) reports
(which make up the National Water Quality Inventory) provide a good
synopsis of known water quality problems. Our understanding of water
quality conditions is enhanced by other indicators of watershed health
such as the Index of Watershed Indicators and by many Federal and State
water quality assessments, such as the National Ambient Water Quality
Assessment program managed by the U.S. Geological Survey. Further, the
Clean Water Action Plan asked States to identify waters in need of
restoration to meet water quality and other natural resource goals;
States have identified over 800 watersheds as priorities for
restoration.
EPA and State water quality agencies agree that monitoring and
assessment coverage should continue to expand over time to provide more
comprehensive water quality management information. EPA and other
Federal agencies on the National Water Quality Monitoring Council are
working with States to broaden the coverage of water quality studies,
including the use of rotating basin monitoring approaches, and to
provide technical assistance to States to help use statistical surveys
to provide more information from the monitoring that is accomplished.
Under the Regional Environmental Monitoring and Assessment Program, the
Office of Research and Development provides technical assistance to EPA
Regions and States for design and implementation of probability-based
surveys to characterize waters at the watershed, State, or ecoregion
level.
In addition, EPA and the States are working collaboratively through
the 305(b) Consistency Workgroup to update and improve the national
guidelines and protocols for assessing State water quality. Through
this effort, EPA and the States hope to improve water quality
monitoring methods, provide consistent schedules for sampling and
evaluation, and improve reporting mechanisms. Although this is a multi-
year effort, much progress has already been made. However, over the
next few years, we expect to see vastly improved monitoring and
reporting by the States which should result in a much improved National
Water Quality Inventory.
As all these various assessment efforts mutually highlight known
watershed and nonpoint source problems that go beyond traditional point
source concerns, we do support the need for all of us to take
reasonable next steps as outlined in the Clean Water Action Plan to
address these remaining problems.
Question 4. How does the agency justify, in the National Water
Quality Inventory, that ``without known and consistent survey methods
in place, the EPA must use caution in comparing data or determining the
accuracy of data of data submitted by different States and
jurisdictions'' yet the Agency compares and compiles States' data for
the development of the NWQI report?
Response. We believe that the current State section 305(b) reports
provide a good synopsis of known water quality problems. The NWQI
report describes the sources of variation among the data reported by
States; and, EPA, in turn, presents the best national summary that we
can generate by combining the number of waters States classify as
either supporting water quality goals or as impaired. We believe that
these data are currently the best available to characterize national
water quality. As you note, EPA does highlight the current data
limitations and emphasizes that additional and more consistent
information is needed.
Uncertainties in the national 305(b) summary arise primarily
because States use different water quality criteria and survey methods
to rate their water quality. The States also take different approaches
to designating how their waterbodies are most appropriately to be
used--such as for swimming, drinking, or fishing. The Clean Water Act
does provide the States the flexibility to address these issues in ways
that are the most appropriate to their local watershed conditions and
circumstances. As described in response to your previous question,
while still recognizing necessary State and local flexibility, EPA and
the States continue to work together to improve the national
consistency of the section 305(b) reporting process.
Question 5. In States where primacy has been granted over nonpoint
source pollution, how does that State in turn manage pollution from
Federal lands, within its boundaries, and more importantly, who retains
the legal authority over these pollution problems?
Response. All States currently have approved nonpoint source
management programs under section 319 of the Clean Water Act. The
Federal land management agencies have lead jurisdictional authority to
ensure that the land is managed in accordance with applicable laws.
Under section 313 of the Clean Water Act, Federal land management
agencies have the same legal responsibilities to comply with Federal,
State, and local laws, processes, and sanctions with regard to
discharges or runoff of pollutants to the same extent as any State or
private entity. In addition, in section 319 of the CWA, Congress has
established a process whereby States may review Federal financial
assistance programs and development projects and, pursuant to Executive
Order 12372 signed by President Reagan in 1983, identify which of those
projects or programs are consistent with the State's program. Most
States have identified in their nonpoint source management programs
those Federal programs and projects that they review under Executive
Order 12372. Moreover, many States have signed memoranda of
Understanding with the Forest Service, the Bureau of Land Management,
and other Federal agencies to promote water quality protection on
Federal lands.
Question 6. The Unified Strategy for Animal Feeding Operations
(AFOs) seems to require the permitting of AFOs that do not discharge to
the waters of the United States. The regulations clearly require
permitting of only those animal feeding operations that discharge at
storm events that are less than 25-year, 24-hour events. How can
permits be required for AFOs in areas where regulations clearly State
that permits are not needed?
Response. EPA's position is that most AFOs with greater than 1,000
animal units are CAFOs and should be covered by an NPDES permit due to
the quantity of manure generated. Further, it is EPA's belief that many
of the largest CAFOs (greater than 1,000 AU) have had discharges in the
past and/or have a reasonable likelihood for future discharges and
therefore should be required to seek coverage under a NPDES permit.
After a permit application has been received, the State, or EPA as
permitting authority, will then determine whether a permit is
appropriate.
Question 7. What are the criteria for a functionally equivalent
program? Will functional equivalency be based on performance
(environmental outcome) or process (permits)?
Response. A program that is functionally equivalent to an NPDES
program must first seek and secure authorization under 40 CFR 123.61
(initial approval) or 40 CFR 123.62 (modification of existing NPDES
program) before a permit issued by the State will satisfy the NPDES
permitting requirement. The criteria for authorization are found in 40
CFR part 123. These criteria include: elimination of conflicts of
interest; requirements for enforcement authority and penalty
provisions; confidentiality of permit application information; EPA
review of and objection to State permits; public notice and public
hearings for permit issuance; citizens appeal of final-issued permits;
and citizen intervention in enforcement proceedings. This regulation
specifies the procedures EPA will follow in approving, revising, and
withdrawing State programs and the requirements State programs must
meet to be approved by the EPA Administrator under sections 318, 402,
and 405 of the Clean Water Act. Included in the regulation are
procedural requirements intended to meet the procedural and water
quality and public health objectives of the Act.
Question 8. The Strategy suggests that a ``functionally
equivalent'' program for a State is some type of permitting program,
which will eliminate many State programs that are currently protecting
the environment. Has the EPA determined that the only way to protect
the environment is through a permit process?
Response. The Unified Animal Feeding Operations Strategy emphasizes
voluntary and incentive-based approaches to encourage AFOs to address
water quality and public health impacts of their operations. EPA and
USDA will be working closely with States, Tribes, the agriculture
industry and other stakeholders to implement best management practices
using the existing framework of technical and financial assistance,
including effective State programs on the vast majority of the Nation's
450,000 animal feeding operations.
Under the existing regulatory framework of the Clean Water Act,
NPDES permits are required for approximately 5 percent of all animal
feeding operations (those that are defined or designated as CAFOs). EPA
will be working with States to more closely align existing State
programs to meet the environmental objectives outlined in the Federal
program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization. EPA does expect NPDES-authorized States to issue
NPDES permits to those operations that are CAFOs.
Question 9. How will the Agency handle a State, with delegated
authority, that chooses not to implement the Strategy or is prohibited
from doing so because of financial constraints?
Response. States and Tribes play a critical role in the development
and implementation of national and State and Tribal water resource
protection programs. EPA is committed to work in partnership with
States and Tribes. EPA believes the need for a national goal and
performance expectation for AFOs can be balanced with the need for
flexibility to address the various needs and priorities of the States
and Tribes, including coordination with other clean water programs. The
Strategy does not, however, impose any binding requirements on States.
As a condition of NPDES authorization, each authorized State had to
demonstrate that it had the necessary legal authority and resources to
carry out the program. EPA expects authorized States to fully implement
the NPDES program for CAFOs. In recognition of NPDES-authorized States'
differing circumstances, the Strategy does, however, provide several
types of flexibility.
First, EPA recognizes that some States may be implementing
permitting programs under State law that meet or exceed the
requirements of, and, therefore, are functionally equivalent to the
NPDES program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization.
Second, because of differences in workload and resources among
authorized States, EPA is providing flexibility for States in the
issuance of permits for CAFOs with fewer than 1,000 animal units (AUs).
While NPDES-authorized States are expected to issue general permits to
the largest CAFOs (greater than 1,000 AUs) by January 2000, States will
have until the end of 2002 to issue permits to CAFOs with fewer than
1,000 AUs. EPA acknowledges that some States may even need additional
time beyond 2002 to issue permits for smaller CAFOs.
A final area of flexibility relates to the schedule for issuing
individual permits to certain CAFOs. Although these individual permits
should be issued as expeditiously as possible, EPA and States should
consider State-specific circumstances such as the total number of CAFOs
with greater than 1,000 AUs, the need to issue individual permits to
new or exceptionally large facilities, and the availability of
technical assistance for development of comprehensive nutrient
management plans. States may give permitting priority to impaired water
bodies (such as 303(d) listed waters or those identified in State water
quality management plans). In addition, where a State develops an NPDES
program that provides for a comprehensive response to environmental
issues at CAFOs, EPA will generally defer to an authorized State's
judgment with respect to the use of individual or general permits.
To help States with the cost of issuing permits to CAFOs, as well
as other costs associated with the CWAP, the Administration requested,
and Congress appropriated, a $20 million increase to section 106 State
and Tribal water quality program grants in fiscal year 1999. The same
funding level has been requested for fiscal year 2000 to continue to
support these activities.
Question 10. Please explain the number of FTE's the Agency has
devoted to the Action Plan for (1) the regulatory aspects and (2) the
voluntary and incentive based portions?
Response. As you know, most of the Clean Water Action Plan is based
on voluntary and incentive-based strategies to address the remaining
threats to water quality, especially polluted runoff. Additionally,
much of the Federal portion of the Action Plan centers around providing
the technical tools and assistance, as well as financial assistance to
our State, Tribal, and local partners to address the wide variety of
problems facing our rivers, lakes, coastal waters, and wetlands.
There are approximately 1700 FTE working in the national water
program that support the general goals of the Clean Water Action Plan
and the Clean Water Act. The Agency does not track FTEs in the
categories suggested in the question above, however, we can offer the
following estimates for the few direct regulatory aspects of the Clean
Water Action Plan:
Stormwater regulations (phase 11). The Agency is currently
devoting approximately nine FTE to support the stormwater phase II
effort.
A small portion of the Unified Animal Feeding Operations
Strategy (which affects approximately 5 percent of the of the 450,000
animal feeding operations nationwide) is regulatory in nature. The
Agency is currently devoting approximately five FTE to support the
permitting and enforcement aspects of this Strategy.
A new effluent guideline for coal mining. The Agency is
currently devoting approximately two FTE to this effort.
For fiscal year 2000, the Agency asked the Office of
Enforcement and Compliance Assurance (OECA) to redirect 20.0 workyears
within the Water Quality Civil Enforcement program from lower priority
activities, such as actions against significant non-compliers in non-
priority watersheds, to carry out the Clean Water Action Plan. Two of
the seven national priority areas in the fiscal year 2000/2001 OECA
Memorandum of Agreement--Safe Drinking Water Act microbial rules and
wet weather problems (combined sewer overflows, sanitary sewer
overflows, concentrated animal feeding lot operations, and
stormwater)--direct Regional staff to focus on these activities in the
priority watersheds to be identified under the CWAP. In fiscal year
2000, both Headquarters and Regional staff will continue work to
develop strategies and policies as well as improving our targeting to
more effectively support implementation of the CWAP.
______
Responses by Carol M. Browner to Additional Questions from
Senator Crapo
Question 1. During the hearing, it was stated that no cost analyses
had been made on the strategic element of the Clean Water Action Plan.
Rather, each of the individual elements will be analyzed separately.
What are the estimated implementation costs to the Federal agencies,
State agencies, and regulated communities for each of the action items
under the Plan?
Response. As was stated during the hearing, cost estimates will be
prepared for major regulatory elements of the Action Plan, as is the
standard practice when developing new regulations.
Question 2. What resources have been or will be made to assist the
States and regulated communities for carrying out each item?
Response. The Administration proposed a cross-agency budget
initiative to support the Clean Water Action Plan. Much of that Budget
request was intended to support our State and local partners in the
implementation of the Action Plan. Unfortunately, Congress did not
fully fund this request in fiscal year 1999. The Administration is
requesting $2,275 million, a $453 million increase from fiscal year
1999, to fund such programs in fiscal year 2000 and would appreciate
Congress's serious consideration of this request.
Within this funding request, several EPA programs directly support
our State, Tribal, and local partners, including $200 million in
polluted runoff funding (section 319 grants) and $116 million for State
program management (section 106 grants). In addition, base funding for
the wetlands protection grants, water quality cooperative agreements,
water quality program management funds, and the State Revolving Fund
all support our State, Tribal, and local partners in the implementation
of the Action Plan.
The fiscal year 2000 President's Budget also includes increases for
National Oceanic and Atmospheric Administration's polluted runoff State
grants, the Office of Surface Mining's abandoned mine water quality,
and the Natural Resources Conservation Service's locally-led
conservation, all of which assist States and localities with
implementing the CWAP action items.
Question 3. Without proper attention to the cost of implementation
and provision of resources to the producer, this program will not be
effectively implemented nor done on a voluntary basis. Will EPA tailor
implementation to the availability of assistance to farmers and
ranchers?
Response. As mentioned above, resources are an important part of
the Clean Water Action Plan. In fiscal year 1999, the Administration
proposed a multi-Agency budget increase of $568 million to provide much
needed funds to farmers, ranchers, and others to implement voluntary
pollution control measures. Unfortunately, Congress only provided $186
million of the increase requested. These reductions, particularly in
the USDA portion of the budget request, have restricted our ability to
provide assistance to farmers and ranchers and other landowners.
The agencies involved in the Clean Water Action Plan must
prioritize assistance to correspond to the amount of funding available.
It should be noted, of course, that there are many landowners who will
respond to requests to implement pollution control measures on their
land because they have a strong conservation ethic and have the
financial resources to do so without governmental assistance. However,
in today's difficult economy, many farmers, ranchers and other
landowners do not have the financial resources to implement such
measures without governmental assistance. Therefore, the financial
assistance programs represented in the Clean Water Action Plan budget
request, play a critical role in implementing these important programs.
Question 4. Have local Soil Conservation Districts been allowed
significant input into the TMDL identification process.
Response. EPA regulations and guidance outline our expectations
that a wide-range of stakeholders, including the general public,
participate in the State section 303(d) listing process where impaired
and threatened waterbodies needing TMDLs are identified. As just one
example, the TMDL regulations require States to identify impaired
waters by assembling and evaluating ``all existing and readily
available data'' from a variety of sources, including water quality
problems reported by local organizations [40 CFR 130.7(b)(5)]. Given
their particular knowledge and expertise on agricultural pollution
problems and solutions, the States and EPA have worked closely for many
years with USDA's Natural Resources Conservation Service and their
local Soil Conservation District partners on NPS programs; our programs
and guidance encourage these partnerships. EPA also provides grant
support to the National Association of Conservation Districts and the
National Association of State Conservation Agencies to help their
members become more involved in water quality issues, including TMDLs.
Question 5. What is the intention of the Watershed General Permit?
Do you really intend for rural residents with a handful of horses to be
subject to the same permitting requirements as a large farm? Do you
intend to follow the complete Federal rulemaking process before you
institute this and other parts of the Clean Water Action Plan?
Response. The Unified Animal Feeding Operations Strategy emphasizes
voluntary and incentive-based approaches to encourage AFOs to address
water quality and public health impacts of their operations. EPA and
USDA will be working closely with States, Tribes, the agriculture
industry and other stakeholders to implement best management practices
using the existing framework of technical and financial assistance,
including effective State programs on the vast majority of the Nation's
450,000 animal feeding operations.
Under the regulatory framework of the Clean Water Act, NPDES
permits are required for approximately 5 percent of all animal feeding
operations (those that are defined or designated as CAFOs). EPA
believes that most CAFOs will be covered by a Statewide general permit.
A watershed-specific permit is nothing more than a general permit with
a narrower geographic scope that corresponds to a particular watershed.
The NPDES permitting authority may choose to use a watershed specific
CAFO permit to address the unique problems facing a particular
watershed. The AFO Strategy calls for primarily large operations
(greater than 1,000 AUs) be covered by NPDES permits. EPA does not
anticipate ``rural residents with a handful of horses'' to be CAFOs or
to be covered by an NPDES permit. EPA will follow the Federal
rulemaking process as it reviews and revises the current regulations
for CAFOs. The AFO Strategy itself is not a rule and does not change
the legal requirements for CAFOs. General permits are not rules, but
EPA will follow a very similar administrative process to issue general
permits.
Question 6. How does the EPA intend to use general discharge
permits? Will these be handled at the discretion of State regulators
under their Clean Water Act primacy or by the EPA?
Response. EPA believes that most CAFOs will be covered by a State-
wide general permit. For those States with authorized NPDES programs,
the States issue NPDES general permits. For those States that do not
have authorized NPDES programs, EPA will issue the general permit.
Question 7. Given the likelihood that many smaller operations will
go out of business rather than comply with certain requirements, has
the EPA measured the probable environmental impact of further
transforming the AFO industry toward fewer, but considerably larger
operations?
Response. The vast majority of AFOs, particularly the small
operations, will be encouraged to develop comprehensive nutrient
management plans. These plans are voluntary and should not directly
contribute to the already existing economic pressures on small farm
operations. Further, it is not the intent of the anticipated CAFO
rulemakings to drive out small operations out of business. By law, EPA
is required to assess the impacts on small businesses. EPA will also
obtain small business input during the rule development phase to help
mitigate adverse impacts to small business.
Question 8. Under the proposed TMDL rules, the EPA may require BMPs
for nonpoint sources on impaired streams. How is the requirement for
States to implement BMPs different from Federal establishment of
nonpoint source regulation.
Response. The forthcoming changes to the TMDL regulations have not
yet been proposed; they are expected in late summer 1999. They likely
will closely follow the consensus recommendations of a Federal Advisory
Committee Act [FACA] committee for TMDLs submitted to the Administrator
in mid-1998 (see http://www.epa.gov/OWOW/tmdl/advisory.html). A key
recommendation of the FACA committee is that BMPs for nonpoint sources
should be implemented by States where needed, but that reasonable
assurances for implementation--not regulation--should be required.
Specifically, if a TMDL identifies load reductions from nonpoint
sources to meet water quality standards, the State would provide
reasonable assurances that nonpoint source load reductions will be
achieved. In addition to any regulatory means a State chooses to employ
(such as local ordinances for septic tanks), these reasonable
assurances could be voluntary, non-regulatory or incentive-based,
consistent with applicable programs at the local, State or Federal
level and generally reflected in the State's NPS management program
under CWA section 319.
Question 9. Has the EPA done an assessment of the impact of
voluntary BMPs the forest industry has undertaken? Would it be
appropriate for Federal agencies to undertake an investigation of these
impacts prior to the development of TMDL requirements?
Response. EPA has reviewed a number of State assessments of the
effectiveness of their forestry programs (which in most cases focus on
voluntary approaches that are backed by enforceable authorities) and
also has had the opportunity at various times to tour forestry sites
with State officials. The State assessments over time have indicated a
general improving trend in the implementation rates of State-
established best management practices. While the improved
implementation of best management practices does not guarantee that the
State's water quality standards will be achieved in all cases, it is
good evidence of the improving effectiveness of the State's programs.
A total maximum daily load (TMDL), required by section 303(d) of
the Clean Water Act, is a calculation of the maximum amount of a
pollutant that a waterbody can receive and still meet water quality
standards. States identify waters not meeting water quality standards,
set priorities, and then develop TMDLs for those waters. A State that
has an effective voluntary BMP program for forestry will very likely
have fewer waters that are not meeting water quality standards due to
forestry activities. Thus, an effective voluntary program can reduce
the number of waters for which a TMDL needs to be developed.
Furthermore, even where a TMDL is developed, voluntary means may be
used to implement pollution control measures as long as there is a
reasonable likelihood that these measures will actually be implemented.
______
Responses by Carol M. Browner to Additional Questions from
Senator Inhofe
Question 1. The strategy mentions Federal support for State
certification programs to develop private sector sources of assistance
in developing Comprehensive Nutrient Management Plans (``CNMP'').
Specifically, what kind of financial and technical resources will the
EPA and USDA provide to develop CNMP certification?
Response. EPA does support the concept of certified specialists to
help ensure the quality of CNMPs. States will have the lead role to
establish these certification programs. EPA and USDA will support
development of these certification programs and have outlined in the
Strategy several actions related to building capacity for CNMP
development and implementation. Of course, States may use funding such
as 106 and 319 funding to establish such a certification program.
Question 2. How does EPA intend to regulate dry-litter poultry
operations and ensure compliance with the provisions of the Strategy?
Response. Currently, most dry poultry operations are not subject to
NPDES permitting because the current regulation only applies to
operations with 100,000 layers or broilers with continuous flow
watering systems, or operations with 30,000 layers or broilers with
liquid manure systems. In practice, ``continuous watering system''
refers to an outdated technology, and the threshold in the CAFO
regulation that is based on this technology would rarely apply.
Therefore, the threshold based on liquid manure system'' would be the
more commonly applied threshold for poultry operations.
EPA believes that animal feeding operations, including poultry
operations, that remove waste from pens and stack it in areas exposed
to rainfall or an adjacent watercourse may have established a crude
liquid manure system for process wastewater that may discharge
pollutants, and therefore would be subject to the current CAFO
regulations. These facilities would be point sources under the NPDES
program if the number of animals confined at the facility meets the
regulatory definition in 40 CFR Part 122, Appendix B or if the facility
is designated a CAFO.
In addition, under the Strategy, EPA committed to consider revising
the regulation to include large poultry operations, consistent with the
size threshold for other animal sectors, as CAFOs, regardless of the
type of watering or manure handling system. The Agency is at the early
stages of its rule development process in which this option is being
considered.
Under the regulatory framework of the Clean Water Act,
approximately 5 percent of all animal feeding operations are either
defined or designated as concentrated animal feeding operations (CAFOs)
and required to have NPDES permits. The permit, as with permits for
other CAFOs, would require development and implementation of a
comprehensive nutrient management plan. This CNMP would be the key
vehicle for ensuring that the litter is managed properly and water
quality impacts are minimized.
Question 3. Does EPA intend to regulate, or have any involvement
in, dry-litter poultry operations that currently follow a State-
certified, NRCS approved AMP?
Response. EPA expects that a State-certified AMP would likely
satisfy or could be modified to satisfy the requirement for a CNMP.
Question 4. Will EPA Regional Offices be required to follow the
provisions of the strategy when developing Regional General Permits for
CAFO's, or will Regional Offices be given the flexibility to tailor
CAFO General Permits to the needs of States in their regions?
Response. EPA Regions, where they are the NPDES permitting
authority, will be expected to issue permits for CAFOs that are
consistent with the permitting approach in the AFO Strategy, which
includes the flexibility to issue general permits.
Question 5. If flexibility is given, will Regional Offices be
allowed to develop CAFO General Permits that are more stringent than
what is provided in the strategy (as Region 6 in Dallas has already
attempted)?
Response. EPA Regions, where they are the NPDES permitting
authority, will be expected to issue permits for CAFOs that are
consistent with the permitting approach in the AFO Strategy. The EPA
Region 6 draft CAFO general permit proposed on June 26, 1998, is
largely consistent with the USDA/EPA Unified AFO Strategy issued on
March 9, 1999. Region 6 has worked closely with EPA Headquarters to
develop a model general permit and we fully expect that its general
permit will be consistent with the AFO Strategy.
Question 6. Because the most limiting factor in most States is lack
of adequate scientific data to accurately identify sources of nonpoint
source pollution, (a) what will EPA do to support better water quality
monitoring and (b) what information will EPA use in the meantime to
identify watersheds being adversely impacted by AFO's (i.e., for
watershed-specific CAFO General Permits)?
Response. One of the actions in the AFO Strategy addresses water
quality monitoring. EPA, in cooperation with States, will identify ways
to improve the Clean Water Act section 305(b) Water Quality Inventory
to better report the water quality impacts caused by AFOs. States, not
EPA, have historically, and will continue to have the primary role in
monitoring the condition of their surface waters and in determining
which watersheds may be adversely impacted by AFOs and may benefit from
a watershed permitting approach. EPA encourages States to use existing
watershed assessment processes, such as the Clean Water Act section
303(d) listing process, to evaluate causes of water quality impairment.
In addition, EPA is currently reviewing available information to
determine in which watersheds to focus the Agency's CAFO compliance
assistance, permitting and compliance monitoring activities. The Agency
will use watershed information on (1) the potential for manure runoff;
(2) the amount of surface water (stream miles and lake acreage); and
(3) water quality monitoring information to determine these CAFO
priority watersheds. This activity could be used to help determine
where to use a watershed permitting approach for CAFOs.
Question 7. The current Clean Water Act and the regulations
associated with it have not been fully implemented to include all those
currently required to have CAFO permits. The regulations allow EPA a
great deal of latitude when it comes to determining what is a CAFO. It
appears polls and politics are driving this program as opposed to
science. Why is EPA proposing to expand the current program when it has
not even implemented the existing program? Should you not interpret the
success of the current program prior to changing it? You make
predictions in the Strategy on numbers that cannot be defended yet the
conclusion that we need to change the focus is made. Is the direction
of new policy determined by looking at the number of permits and
enforcement actions?
Response. The Unified Animal Feeding Operations Strategy emphasizes
voluntary and incentive-based approaches to encourage AFOs to address
water quality and public health impacts of their operations. EPA and
USDA will be working closely with States, Tribes, the agriculture
industry and other stakeholders to help implement best management
practices on most of the Nation's 450,000 animal feeding operations.
Under the regulatory framework of the Clean Water Act, NPDES
permits are required for approximately 5 percent of all animal feeding
operations (those that are defined or designated as CAFOs). The
Strategy includes a number of actions designed to better implement the
existing regulatory program during the next decade and that reflect the
expansion and concentration of the animal agriculture industry over the
past two decades. During Round I permitting of CAFOs (2000-2005), EPA
is focusing primarily on the large operations, which should be
addressed through NPDES general permits. EPA expects many other
operations to seek voluntary assistance to ensure that are not a
priority in future NPDES permitting. EPA will consider the success of
the current efforts as we consider changes to the existing regulations,
which will be in effect during Round II (2005-2010).
Question 8. You have gone before numerous committees stating EPA
does not have the resources to implement the current environmental
statutes. Clearly, EPA has demonstrated that you are unable to fully
implement the existing programs, as it pertains to agriculture. States
have made it clear that they do not have the resources to implement the
existing program. How does the administration expect to implement an
entirely new program that is much more expansive than the existing
program?
Response. The program outlined in the Unified AFO Strategy is a
largely a collection of existing efforts and programs. EPA and USDA are
committed to better coordinating these efforts and ensuring that
programs are more effectively implemented to better address the water
quality and public health impacts of animal feeding operations while
maintaining the overall, long-term sustainability of the industry. For
instance, EPA and USDA have existing programs that provide technical
and financial assistance, such as the nonpoint source grants program
(CWA sec. 319), the Clean Water State Revolving Fund Program, the
Environmental Quality Incentives (EQIP) program, Conservation Technical
Assistance, and many others. Additionally, concentrated animal feeding
operations have been required to have NPDES permits since 1976. (There
are many reasons CAFO permits have not been issued over the years and
resource constraints are only one of the issues.)
To support the States in these efforts, in fiscal year 1999 the
Administration requested and received increases to the nonpoint source
(319) and State program management (106) grants. However, only $174
million was authorized for EQIP rather than the $300 million requested
by the Administration. The Administration has also included additional
funds to support the Clean Water Action Plan, including a $126 million
increase to EQIP, in the fiscal year 2000 budget request.
Question 9. Has a cost analysis been done to determine EPA's needs
to implement this strategy? Has any cost/benefit analysis been done?
Are you avoiding SBREFA and Regulatory Flexibility Act by changing
regulations with Strategies and Policies as opposed to regulations?
Response. The Strategy summarizes possible changes to EPA's
regulations that are being considered, but the Strategy is not itself a
proposed regulation. Nevertheless, EPA and USDA committed in the
Strategy to develop a joint evaluation of its costs and benefits. In
addition, EPA will conduct the appropriate cost benefit analyses, cost-
effectiveness analyses and financial analyses as required under the
Regulatory Flexibility Act, and the other statutes and Executive Orders
if changes to the existing regulations are proposed.
Question 10. The Strategy seems to require the permitting of AFOs
that do not discharge to the waters of the United States. The
regulations clearly require permitting only of animal feeding
operations that discharge at storm events that are less than 25-year,
24-hour events. How can permits be required for AFOs where the
regulations clearly say they are not needed?
Response. EPA's position is that most AFOs with greater than 1,000
AUs are CAFOs and should be covered by an NPDES permit due to the
quantity of manure generated. Further, it is EPA's belief that many of
the largest CAFOs (greater than 1,000 AU) have had discharges in the
past and/or have a reasonable likelihood for future discharges and
therefore should be required to seek coverage under a NPDES permit.
After an application has been received, it will then be determined
whether a permit is appropriate.
Question 11. What are the criteria for a functionally equivalent
program? Will functional equivalency based on performance
(environmental outcome) or process (permits)?
Response. A program that is functionally equivalent to an NPDES
program must first seek and secure authorization under 40 CFR 123.61
(initial approval) or 40 CFR 123.62 (modification of existing NPDES
program) before a permit issued by the State will satisfy the NPDES
permitting requirement. The criteria for authorization are found in 40
CFR part 123. These criteria include: elimination of conflicts of
interest; requirements for enforcement authority and penalty
provisions; confidentiality of permit application information; EPA
review of and objection to State permits; public notice and public
hearings for permit issuance; citizens appeal of final-issued permits;
and citizen intervention in enforcement proceedings. This regulation
specifies the procedures EPA will follow in approving, revising, and
withdrawing State programs and the requirements State programs must
meet to be approved by the EPA Administrator under sections 318, 402,
and 405 of the Clean Water Act. Included in the regulation are
procedural requirements intended to meet the procedural and water
quality and public health objectives of the Act.
Question 12. The strategy suggests that a ``functionally
equivalent'' program for a State is some type of permitting program.
This will eliminate many State programs that are currently protecting
the environment. Has EPA determined that the only way to protect the
environment is through a permit? Did we not already realize command and
control does not work?
Response. The Unified Animal Feeding Operations Strategy emphasizes
voluntary and incentive-based approaches to encourage AFOs to address
water quality and public health impacts of their operations. EPA and
USDA will be working closely with States, Tribes, the agriculture
industry and other stakeholders to implement best management practices
using the existing framework of technical and financial assistance,
including effective State programs on the vast majority of the Nation's
450,000 animal feeding operations.
Under the existing regulatory framework of the Clean Water Act,
NPDES permits are required for approximately 5 percent of all animal
feeding operations (those that are defined or designated as CAFOs). EPA
will be working with States to more closely align existing State
programs to meet the environmental objectives outlined in the Federal
program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization. EPA does expect NPDES-authorized States to issue
NPDES permits to those operations that are CAFOs.
Question 13. How does EPA make broad conclusions of environmental
harm when only 19 percent of the rivers in the United States have been
tested and it can be assumed that those are the waters in the worst
condition?
Response. We believe that the current State section 305(b) reports
(which make up the National Water Quality Inventory) provide a good
synopsis of known water quality problems. Our understanding of water
quality conditions is enhanced by other indicators of watershed health
such as the Index of Watershed Indicators and by many Federal and State
water quality assessments, such as the National Ambient Water Quality
Assessment program managed by the U.S. Geological Survey. Further, the
Clean Water Action Plan asked States to identify waters in need of
restoration to meet water quality and other natural resource goals;
States have identified over 800 watersheds in this country as
priorities for restoration. Also, we don't assume the waters surveyed
are the worst; many States use probabilistic methods or rotating basin
approaches for water quality assessments in order to present a balanced
picture.
EPA and State water quality agencies agree that monitoring and
assessment coverage should continue to expand over time to provide more
comprehensive water quality management information. EPA and other
Federal agencies on the National Water Quality Monitoring Council are
working with States to broaden the coverage of water quality studies,
including the use of rotating basin monitoring approaches, and to
provide technical assistance to States to help use statistical surveys
to provide more information from the monitoring that is accomplished.
Under the Regional Environmental Monitoring and Assessment Program, the
Office of Research and Development provides technical assistance to EPA
Regions and States for design and implementation of probability-based
surveys to characterize waters at the watershed, State, or ecoregion
level.
In addition, EPA and the States are working collaboratively through
the 305(b) Consistency Workgroup to update and improve the national
guidelines and protocols for assessing State water quality. Through
this effort, EPA and the States hope to improve water quality
monitoring methods, provide consistent schedules for sampling and
evaluation, and improve reporting mechanisms. Although this is a multi-
year effort, much progress has already been made. However, over the
next few years, we expect to see vastly improved monitoring and
reporting by the States which should result in a much improved National
Water Quality Inventory.
As all these various assessment efforts mutually highlight known
watershed and nonpoint source problems that go beyond traditional point
source concerns, we do support the need for all of us to take
reasonable next steps as outlined in the Clean Water Action Plan to
address these remaining problems.
Question 14. How will EPA handle a State with delegated authority,
that chooses not to implement the strategy or merely cannot under
financial constraints?
Response. States and Tribes play a critical role in the development
and implementation of national and State and Tribal water resource
protection programs. EPA is committed to work in partnership with
States and Tribes. EPA believes the need for a national goal and
performance expectation for AFOs can be balanced with the need for
flexibility to address the various needs and priorities of the States
and Tribes, including coordination with other clean water programs. The
Strategy does not, however, impose any binding requirements on States.
As a condition of NPDES authorization, each authorized State had to
demonstrate that it had the necessary legal authority and resources to
carry out the program. EPA expects authorized States to fully implement
the NPDES program for CAFOs. In recognition of NPDES-authorized States'
differing circumstances, the Strategy does, however, provide several
types of flexibility.
First, EPA recognizes that some States may be implementing
permitting programs under State law that meet or exceed the
requirements of, and, therefore, are functionally equivalent to the
NPDES program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization.
Second, because of differences in workload and resources among
authorized States, EPA is providing flexibility for States in the
issuance of permits for CAFOs with fewer than 1,000 animal units (AUs).
While NPDES-authorized States are expected to issue general permits to
the largest CAFOs (greater than 1,000 AUs) by January 2000, States will
have until the end of 2002 to issue permits to CAFOs with fewer than
1,000 AUs. EPA acknowledges that some States may even need additional
time beyond 2002 to issue permits for smaller CAFOs.
A final area of flexibility relates to the schedule for issuing
individual permits to certain CAFOs. Although these individual permits
should be issued as expeditiously as possible, EPA and States should
consider State-specific circumstances such as the total number of CAFOs
with greater than 1,000 AUs, the need to issue individual permits to
new or exceptionally large facilities, and the availability of
technical assistance for development of comprehensive nutrient
management plans. States may give permitting priority to impaired water
bodies (such as 303(d) listed waters or those identified in State water
quality management plans). In addition, where a State develops an NPDES
program that provides for a comprehensive response to environmental
issues at CAFOs, EPA will generally defer to an authorized State's
judgment with respect to the use of individual or general permits.
To help States with the cost of issuing permits to CAFOs, as well
as other costs associated with the CWAP, the Administration requested,
and Congress appropriated, a $20 million increase to sec. 106 State and
Tribal water quality program grants for fiscal year 1999. The same
funding level has been requested for fiscal year 2000 to continue to
support these activities.
Question 15. Under section 208(j) of the Clean Water Act, EPA, with
the Secretary of Agriculture, could enter into contracts with producers
to install and maintain best management practices to control non-point
sources. Has EPA asked to have this program funded? If yes, how much?
If no, how can EPA place all the blame on non-point source agriculture
and not even request funding to address that exact issue under the
Clean Water Act.
Response. EPA does not ``place all the blame'' for continuing water
quality problems on agriculture. We have significant efforts underway,
as outlined in a variety of documents including the Clean Water Action
Plan, to address problems associated with stormwater management,
combined sewer overflows, sanitary sewer overflows, and septic systems,
among other sources of impairment. Nevertheless, most experts, and many
agricultural producers, recognize that some farming operations
contribute to water quality problems. As the States report, in the
aggregate, agricultural operations are, in fact, the leading cause of
impairment. Accordingly, EPA has increased its requests for grants to
States under section 319 of the Clean Water Act to address runoff to
$200 million/year and has supported increases for complementary USDA
programs such as EQIP, Conservation Technical Assistance, and CRP. A
large portion--the exact amount determined by each State--of the 319
money is passed through to agricultural producers to assist them to
demonstrate ways to reduce pollution. In addition, EPA has been working
closely with the States and agricultural interests to increase the use
of the Clean Water State Revolving Fund program, which may be used to
provide low interest loans to address nonpoint sources of pollution,
including animal feeding operations.
Section 208(j), which was part of the original CWA, was never
funded largely due to concerns about overlap with existing USDA
programs and concern about the appropriate role for both USDA and EPA.
In response to these concerns, Congress created the Rural Clean Water
Program in USDA to test some of the ideas originally expressed in
section 208(j). This program ran for approximately 10 years and
provided funds for pilot projects around the country. Based on these
and other experiences, the section 319 program was added to the Clean
Water Act when it was reauthorized in 1987. The section 319 program
includes State-led nonpoint source assessments and management programs
as well as a grant program. Based on this history, section 319 is
generally recognized as the appropriate vehicle for EPA to fund best
management practices to address nonpoint sources of pollution. The 1996
Farm bill established EQIP as a means for USDA to fund best management
practices to address nonpoint source pollution among other things.
Question 16. Does EPA plan on regulating the land application of
manure which is applied offsite of the CAFO permit? Will this be part
of the CAFO permit or are you planning on regulating farmers?
Response. In general, the Clean Water Act does not regulate farmers
that, in the normal course of business, use manure on their lands. In a
case where a third party takes manure from a CAFO and applies it to the
land (offsite) that party could be subject to regulation under the
Clean Water Act. If that party develops and implements an appropriate
comprehensive nutrient management plan, the operator would qualify for
the Clean Water Act's agricultural stormwater exemption and, thus,
avoid regulation of its stormwater-related discharges. EPA will provide
additional information on land application in its forthcoming CAFO
permitting guidance.
Question 17. How does EPA plan on using individual permits v.
general permits? Does EPA or the States make the determination of which
permit to issue?
Response. The Unified AFO Strategy encourages the use of general
NPDES permits for most CAFOs. There are some situations, however, where
a general permit may not be appropriate, including for exceptionally
large operations, new operations undergoing significant expansion,
operations with historical compliance problems, and operations with
significant environmental concerns. EPA plans to discuss general and
individual CAFO permits more fully in its forthcoming CAFO permitting
guidance. Those States with an authorized NPDES program have discretion
to determine whether to use general or individual permits, particularly
where a State develops an NPDES program that provides a comprehensive
response to environmental issues at CAFOs. EPA will make that
determination for non-authorized States.
Question 18. The time line for this Strategy is very ambitious. A
draft model permit is supposed to be out in May and then in August. The
strategy then states that the priority permits (15,000-20,000) will be
issued by January of 2000. Is this not an extremely short time for
States to implement 20,000 permits when EPA claims there have currently
only been 6,000 permits issued since the beginning of this program?
Response. As described in the Unified AFO Strategy and under the
current regulations, EPA estimates that a total of 15,000-20,000 CAFOs
will ultimately need to have NPDES permits to address the Strategy's
three permitting priorities: (1) facilities with significant manure
production; (2) facilities with unacceptable conditions; and (3)
facilities that are significantly contributing to water quality
impairment. There are approximately 10,000 CAFOs with significant
manure production. The other two permitting priorities (unacceptable
conditions and significant contributors to water quality impairment)
include approximately 5,000-10,000 CAFOs.
The Strategy discusses the short-term objective of issuing
Statewide general NPDES permits to cover most CAFOs with significant
manure production by January 2000. Statewide general permits are
designed to cover a large number of a particular type of facility and
thus only one is needed for each State. Since individual permits may be
more appropriate for some CAFOs with significant manure production, the
estimate of the CAFOs that need to have general permit coverage by
January 2000 will be somewhat less than 10,000. EPA believes that
because States will use Statewide general permits to cover CAFOs with
significant manure production, the January 2000 objective is feasible.
The remaining CAFOs with unacceptable conditions or that are
significantly contributing to water quality impairment will be covered
by NPDES permits by about 2002. Although EPA is emphasizing these
permitting priorities, it is important to note that CAFOs have been
required to have NPDES permits since 1976.
Question 19. Do you think every concentrated beef cattle feeding
operations over 1,000 head should have a general permit? (Yes or no) If
yes, what was the environmental consideration taken into account in
making that determination and do you not have to discharge or have the
potential to discharge into the waters of the United States in order to
need an NPDES permit? How could a decision based solely on a number
answer the other permitting questions?
Response. EPA's position is that most AFOs with greater than 1,000
AUs are CAFOs and should be covered by an NPDES permit due to the
quantity of manure generated. Further, it is EPA's belief that many of
the largest CAFOs (greater than 1,000 AU) have had discharges in the
past and/or have a reasonable likelihood for future discharges and
therefore should be required to seek coverage under a NPDES permit.
After an application has been received, it will then be determined
whether a permit is appropriate.
Question 20. Many times when asked about specific sections of the
Strategy you and your staff have responded with an expansive
interpretation of that section. The Strategy was written with extreme
vagueness and you seem to treat it as a living document. How is the
producer suppose to interpret it? Is he or she to suppose to rest
assured on your interpretations?
Response. EPA and USDA have been working together to conduct
extensive outreach on the Strategy. For example, we sponsored 11
listening sessions to help explain the draft strategy and gain input
from the industry and other key stakeholders. Listening sessions were
held between November 16 and December 15, 1998 in Tulsa, Oklahoma;
Harrisburg, Pennsylvania; Chino, California; Madison, Wisconsin;
Seattle, Washington; Des Moines, Iowa; Chattanooga, Tennessee;
Indianapolis, Indiana; Fort Worth, Texas; Denver, Colorado; and
Annapolis, Maryland. The meetings provided basic information about the
draft Strategy, answered specific questions on the strategy, and helped
facilitate submission of public comments. Roughly 2,300 farmers,
environmental groups, agriculture industry groups, and other members of
the public attended the meetings.
Upon release of the draft Strategy in September, USDA and EPA
broadcast a video satellite downlink to State conservationists and many
other interested parties. The draft strategy was distributed widely to
EPA and USDA stakeholders and partners and posted on the Internet. We
continue to provide support and outreach to interested parties and are
preparing support materials, including permitting guidance that will
help clarify expectations and requirements for CAFOs. The final
strategy was released in March, and is posted along with an executive
summary at http://www.epa.gov/owm/afo.html on the Internet.
In all these cases, we endeavor to provide consistent support and
interpretations and will continue to work to improve our materials and
outreach efforts.
Question 21. The implementers of this Strategy will be regional
directors and States. There is in many situations of regional
administrators not agreeing with EPA headquarters and in some cases not
following the direction of headquarters. Is that not a more immediate
problem that faces the agency? How are we to know that the regions will
follow EPA headquarters interpretation of this strategy?
Response. EPA will continue to work closely with the Regions and
States to ensure understanding of the AFO Strategy.
______
Responses by Carol M. Browner to Additional Questions from
Senator Hutchison
Question 1a. The current Clean Water Act and the regulations
associated with it have not been fully implemented to include all those
currently required to have CAFO permits. The regulations allow EPA a
great deal of latitude when it comes to determining what is a CAFO. Why
is EPA proposing to expand the current program when it has not even
implemented the existing program? Should you interpret the success of
the current program prior to changing it?
Response. As you know, the Unified Animal Feeding Operations
Strategy emphasizes voluntary and incentive-based approaches to
encourage AFOs to address water quality and public health impacts of
their operations. EPA and USDA will be working closely with States,
Tribes, the agriculture industry and other stakeholders to help
implement best management practices on most of the Nation's 450,000
animal feeding operations.
Under the regulatory framework of the Clean Water Act, NPDES
permits are required for approximately 5 percent of all animal feeding
operations (those that are defined or designated as CAFOs). The
Strategy includes a number of actions designed to better implement the
existing regulatory program during the next decade and that reflect the
expansion and concentration of the animal agriculture industry over the
past two decades. During Round I permitting of CAFOs (2000-2005), EPA
is focusing primarily on the large operations, which should be
addressed through NPDES general permits. EPA expects many other
operations to seek voluntary assistance to ensure that are not a
priority in future NPDES permitting. EPA will consider the success of
the current efforts as we consider changes to the existing regulations,
which will be in effect during Round II (2005-2010).
Question 1b. Has EPA done an analysis of States with delegated
authority and their NPDES program? If so, could you supply me with that
information? If not, how did EPA make the conclusion that the State
programs need to be changed?
Response. Forty-three States are authorized to implement the NPDES
program. EPA believes that, with the exception of Oklahoma, all these
States currently have authority to address CAFOs through their NPDES
program. Despite this longstanding authority, some States such as North
Carolina have developed alternative regulatory programs to deal with
AFOs. The NPDES regulations provide for the recognition of these State
programs as NPDES permit programs. Where a State can demonstrate that
its program meets the NPDES program requirements, EPA will amend the
State's current NPDES authorization to recognize the State program.
Question 2. The strategy would put in place thousands of new NPDES
permits for AFOs across the country, at the same time that EPA's
enforcement office is pursuing existing CAFO permit holders. What is
the goal of the Strategy: compliance, assurance or enforcement?
Response. The AFO Strategy clearly indicates reliance on a complete
range of tools to ensure that animal waste is effectively managed to
protect water quality, including permitting, compliance assurance, and
enforcement as needed. While the vast majority of AFOs will be
encouraged to implement appropriate environmental safeguards through
voluntary programs, EPA expects that about 15,000-20,000 CAFOs will be
covered by NPDES permits under the current regulations. As with all CWA
regulatory programs, EPA may take action for discharges without a
permit or discharges in violation of a permit, and may initiate
emergency action at any time against an entity that presents an
imminent or substantial endangerment to human health or the
environment.
Question 3. The strategy causes States to implement general NPDES
permits by January 2000, but CNMPs come a couple of years later. Also
the effluent guidelines (ELGs) are being rewritten and due out in a
later part of next year. Why rush through a very ambitious permit
requirement when many pieces of the permits are still being worked on
and it is obvious the State and Federal officials aren't ready?
Response. As outlined in the Unified AFO Strategy, EPA plans to
work with States to establish a two-phase approach to permitting CAFOs
during the next decade. Round I of CAFO permitting (2000-2005) will
begin early next year and will focus on large CAFOs (i.e., greater than
1,000 animal units), and will occur under EPA's existing regulations
and effluent guidelines. The permits issued during Round I are expected
to remain in effect at least until 2005. The largest CAFOs should
develop and begin implementation of CNMPs between 2000 and 2003; EPA
and States may require CAFO CNMP development and implementation earlier
depending on the specific circumstances in each State. Many of these
large CAFOs may already have CNMPs or planning documents that could be
adapted to meet the requirements of their NPDES permit. EPA believes
that it is appropriate to proceed with Round I CAFO permitting
activities since implementing the existing regulations allows for
substantial short-term progress in addressing the water quality and
public health impacts of CAFOs. Moreover, all authorized States have
the necessary authority to issue NPDES permits to CAFOs under Round I.
In Round II (2005-2010), EPA and States will issue permits that
reflect revisions to the efffluent guidelines, permit program
regulations, and State-adopted water quality standards. Although EPA is
already working on these revisions, they will not be complete until
about 2003.
Question 4. During the Hearing you stated that cost/benefit
analysis was not done on the entire Clean Water Action Plan, however
the policies and rules coming out of the Clean Water Action Plan would
have such analysis. Could you supply me with the cost analysis done on
the USDA/EPA Unified Strategy for Animal Feeding Operations? If one has
not been done, please explain why not.
Response. Neither the CWAP nor the Unified Strategy for Animal
Feeding Operations required a cost/benefit analysis. Nevertheless, EPA
and USDA committed in the Strategy itself to develop a joint evaluation
of the costs and benefits of the Strategy.
We will comply with all the legal and procedural requirements
associated both with the CWAP and the Strategy, including cost/benefit
analyses, where appropriate. Each is a compilation of activities that
we will undertake over a multi-year period. EPA's activities under the
AFO strategy include the revised regulations for CAFO Effluent
Guidelines and CAFO Permits. EPA will conduct cost/benefit analyses to
support these revised rules. The Agency will also comply with the
Regulatory Flexibility Act, Unfunded Mandates Reduction Act, and
Paperwork Reduction Act, as appropriate.
Question 5. In the strategy, you provide specific numbers of CAFOs
and AFOs. Could you supply the source of those numbers? Also, could you
supply how the numbers of facilities outlined in the section addressing
regulatory priorities were reached? Please be specific in how these
numbers were determined.
Response. The numbers used in the Strategy are clearly indicated as
estimates, and are based on the 1992 agriculture census conducted by
USDA. Based on recent trends within the industry toward consolidation,
adjustments were made to the base numbers from this 1992 census data.
Question 6. The regulatory priority section outlines an aggressive
date of January 2000 to have approximately 20,000 permits in place.
Could you provide the cost analysis of implementing these permits and
does the brunt of this cost fall on the States?
Response. Since most States are authorized to implement the NPDES
program for CAFOs, States will have the primary responsibility for
issuing NPDES permits to CAFOs. EPA is, however, encouraging States to
issue Statewide general permits to cover most large CAFOs by January
2000: General permits are much less resource-intensive than using
individual permits.
In addition, EPA received an increase for fiscal year 1999 in Clean
Water Act section 106 grants for State water quality program
administration, and requested continuation of the increase in section
106 grants for fiscal year 2000 as well. These additional funds can be
used by States for programs to address CAFOs.
As we develop regulatory changes called for in the AFO Strategy, we
are committed to undertaking all appropriate and necessary cost-benefit
analyses.
Question 7. You have gone before numerous committees stating that
EPA does not have the resources to implement the current environmental
statutes. Clearly, EPA has demonstrated that it is unable to fully
implement the existing programs, as it pertains to agriculture. States
have made it clear that they do not have the resources to implement the
existing program. How does the administration expect to implement an
entirely new program that is much more expansive than the existing
program?
Response. The program outlined in the Unified AFO Strategy is a
largely a collection of existing efforts and programs. EPA and USDA are
committed to better coordinating these efforts and ensuring that
programs are more effectively implemented to better address the water
quality and public health impacts of animal feeding operations while
maintaining the overall, long-term sustainability of the industry. For
instance, EPA and USDA have existing programs that provide technical
and financial assistance, such as the nonpoint source grants program
(CWA sec. 319), the Clean Water State Revolving Fund Program, the
Environmental Quality Incentives (EQIP) program, Conservation Technical
Assistance, and many others. Additionally, concentrated animal feeding
operations have been required to have NPDES permits since 1976. (There
are many reasons CAFO permits have not been issued over the years and
resource constraints are only one of the issues.)
To support the States in these efforts, in fiscal year 1999 the
Administration requested and received increases to the nonpoint source
(319) and State program management (106) grants. However, only $174
million was authorized for EQIP rasher then the $300 million requested
by the Administration. The Administration has also included additional
funds to support the Clean Water Action Plan, including a $126 million
increase to EQIP, in the fiscal year 2000 budget request.
Question 8. The strategy seems to require the permitting of AFOs
that do not discharge to the waters of the United States. The
regulations clearly require permitting only of animal feeding
operations that discharge at storm events that are less than 25-year,
24-hour events. Is a site-specific determination that a facility is
discharging into the waters of the United States still needed to
determine that a permit is required? Can EPA make assumptions that a
facility is discharging in order to require a permit? If these
operations are not required to be permitted what is the standard EPA
will use to exclude these operations from the permitting program? Is
the burden on the producer to demonstrate they will not discharge?
Response. EPA's position is that most AFOs with greater than 1,000
AUs are CAFOs and should be covered by an NPDES permit due to the
quantity of manure generated. Further, it is EPA's belief that many of
the largest CAFOs (greater than 1,000 AU) have had discharges in the
past and/or have a reasonable likelihood for future discharges and
therefore should be required to seek coverage under a NPDES permit.
After a permit application has been received, the State, or EPA as
permitting authority, will then determine whether a permit is
appropriate.
Question 9. What are the criteria for a functionally equivalent
program? Will functional equivalency be based on performance or
process?
Response. A program that is functionally equivalent to an NPDES
program must first seek and secure authorization under 40 CFR 123.61
(initial approval) or 40 CFR 123.62 (modification of existing NPDES
program) before a permit issued by the State will satisfy the NPDES
permitting requirement. The criteria for authorization are found in 40
CFR part 123. These criteria include: elimination of conflicts of
interest; requirements for enforcement authority and penalty
provisions; confidentiality of permit application information; EPA
review of and objection to State permits; public notice and public
hearings for permit issuance; citizens appeal of final-issued permits;
and citizen intervention in enforcement proceedings. This regulation
specifies the procedures EPA will follow in approving, revising, and
withdrawing State programs and the requirements State programs must
meet to be approved by the EPA Administrator under sections 318,402,
and 405 of the Clean Water Act. Included in the regulation are
procedural requirements intended to meet the procedural and water
quality and public health objectives of the Act.
Question 10. How does EPA make broad conclusions of environmental
harm when only 19 percent of the rivers in the United States have been
tested and it can be assumed that those are the waters in the worst
condition?
Response. We believe that the current State section 305(b) reports
(which make up the National Water Quality Inventory) provide a good
synopsis of known water quality problems. Our understanding of water
quality conditions is enhanced by other indicators of watershed health
such as the Index of Watershed Indicators and by many Federal and State
water quality assessments, such as the National Ambient Water Quality
Assessment program managed by the U.S. Geological Survey. Further, the
Clean Water Action Plan asked States to identify waters in need of
restoration to meet water quality and other natural resource goals;
States have identified over 800 watersheds in this country as
priorities for restoration. Also, we don't assume the waters surveyed
are the worst; many States use probabilistic methods or rotating basin
approaches for water quality assessments in order to present a balanced
picture.
EPA and State water quality agencies agree that monitoring and
assessment coverage should continue to expand over time to provide more
comprehensive water quality management information. EPA and other
Federal agencies on the National Water Quality Monitoring Council are
working with States to broaden the coverage of water quality studies,
including the use of rotating basin monitoring approaches, and to
provide technical assistance to States to help use statistical surveys
to provide more information from the monitoring that is accomplished.
Under the Regional Environmental Monitoring and Assessment Program, the
Office of Research and Development provides technical assistance to EPA
Regions and States for design and implementation of probability-based
surveys to characterize waters at the watershed, State, or ecoregion
level.
In addition, EPA and the States are working collaboratively through
the 305(b) Consistency Workgroup to update and improve the national
guidelines and protocols for assessing State water quality. Through
this effort, EPA and the States hope to improve water quality
monitoring methods, provide consistent schedules for sampling and
evaluation, and improve reporting mechanisms. Although this is a multi-
year effort, much progress has already been made. However, over the
next few years, we expect to see vastly improved monitoring and
reporting by the States which should result in a much improved National
Water Quality Inventory.
As all these various assessment efforts mutually highlight known
watershed and nonpoint source problems that go beyond traditional point
source concerns, we do support the need for all of us to take
reasonable next steps as outlined in the Clean Water Action Plan to
address these remaining problems.
Question 11. There have been many concerns that agriculture is
becoming consolidated. We have heard from many livestock producers that
the strategy will clearly force more consolidation of industry and
eliminate the small livestock producer. Does EPA take this into
consideration and if so please explain how this strategy will avoid
forcing consolidation?
Response. The Strategy emphasizes a balanced voluntary/regulatory
approach, with permitting focused on the largest CAFOs. EPA expects
that smaller operations in situations that might otherwise make them
subject to regulation will voluntarily address those situations to
avoid the requirement to have a permit under the NPDES program. With
respect to the anticipated CAFO rulemakings discussed in the Strategy
it is not EPA's intent to drive out small operations out of business.
By law, EPA is required to assess the impacts on small businesses. EPA
will also obtain small business input during the rule development phase
to help mitigate adverse impacts to small business.
Question 12. How will EPA handle a State, with delegated authority,
that chooses not to implement the strategy or merely cannot under
financial constraints?
Response. States and Tribes play a critical role in the development
and implementation of national and State and Tribal water resource
protection programs. EPA is committed to work in partnership with
States and Tribes. EPA believes the need for a national goal and
performance expectation for AFOs can be balanced with the need for
flexibility to address the various needs and priorities of the States
and Tribes, including coordination with other clean water programs. The
Strategy does not, however, impose any binding requirements on States.
As a condition of NPDES authorization, each authorized State had to
demonstrate that it had the necessary legal authority and resources to
carry out the program. EPA expects authorized States to fully implement
the NPDES program for CAFOs. In recognition of NPDES-authorized States'
differing circumstances, the Strategy does, however, provide several
types of flexibility.
First, EPA recognizes that some States may be implementing
permitting programs under State law that meet or exceed the
requirements of, and, therefore, are functionally equivalent to the
NPDES program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization.
Second, because of differences in workload and resources among
authorized States, EPA is providing flexibility for States in the
issuance of permits for CAFOs with fewer than 1,000 animal units (AUs).
While NPDES-authorized States are expected to issue general permits to
the largest CAFOs (greater than 1,000 AUs) by January 2000, States will
have until the end of 2002 to issue permits to CAFOs with fewer than
1,000 AUs. EPA acknowledges that some States may even need additional
time beyond 2002 to issue permits for smaller CAFOs.
A final area of flexibility relates to the schedule for issuing
individual permits to certain CAFOs. Although these individual permits
should be issued as expeditiously as possible, EPA and States should
consider State-specific circumstances such as the total number of CAFOs
with greater than 1,000 AUs, the need to issue individual permits to
new or exceptionally large facilities, and the availability of
technical assistance for development of comprehensive nutrient
management plans. States may give permitting priority to impaired water
bodies (such as 303(d) listed waters or those identified in State water
quality management plans). In addition, where a State develops an NPDES
program that provides for a comprehensive response to environmental
issues at CAFOs, EPA will generally defer to an authorized State's
judgment with respect to the use of individual or general permits.
To help States with the cost of issuing permits to CAFOs, as well
as other costs associated with the CWAP, the Administration requested,
and Congress appropriated, a $20 million increase to sec. 106 State and
Tribal water quality program grants for fiscal year 1999. The same
funding level has been requested for fiscal year 2000 to continue to
support these activities.
Question 13. Under section 208(j) of the Clean Water Act, EPA, with
the Secretary of Agriculture, could enter into contracts with producers
to install and maintain best management practices to control non-point
sources. Has EPA asked to have this program funded? If yes, how much?
If no, how can EPA place all the blame on non-point source agriculture
and not even request funding to address that exact issue under the
Clean Water Act.
Response. EPA does not ``place all the blame'' for continuing water
quality problems on agriculture. We have significant efforts underway,
as outlined in a variety of documents including the Clean Water Action
Plan, to address problems associated with stormwater management,
combined sewer overflows, sanitary sewer overflows, and septic systems,
among other sources of impairment. Nevertheless, most experts, and many
agricultural producers, recognize that some farming operations
contribute to water quality problems. As the States report, in the
aggregate, agricultural operations are, in fact, the leading cause of
impairment. Accordingly, EPA has increased its requests for grants to
States under section 319 of the Clean Water Act to address runoff to
$200 million/year and has supported increases for complementary USDA
programs such as EQIP and CRP. A large portion--the exact amount
determined by each State--of the 319 money is passed through to
agricultural producers to assist them to demonstrate ways to reduce
pollution. In addition, EPA has been working closely with the States
and agricultural interests to increase the use of the Clean Water State
Revolving Fund program, which may be used to provide low interest loans
to address nonpoint sources of pollution, including animal feeding
operations.
Section 208(j), which was part of the original CWA, was never
funded largely due to concerns about overlap with existing USDA
programs and concern about the appropriate role for both USDA and EPA.
In response to these issues, Congress created the Rural Clean Water
Program in USDA to test some of the ideas originally expressed in
section 208(j). This program ran for approximately 10 years and
provided funds for demonstration programs around the country. Based on
these and other experiences, the section 319 program was added to the
Clean Water Act when it was reauthorized in 1987. The section 319
program includes State-led nonpoint source assessments and management
programs as well as a grant program. Based on this history, section 319
is generally recognized as the appropriate vehicle for funding best
management practices to address nonpoint sources of pollution.
Question 14. Does EPA plan on regulating the land application of
manure which is applied by a 3rd party, offsite of the CAFO? If yes,
will this be part of the CAFO permit or are you planning on regulating
farmers under separate permits?
Response. In general, the Clean Water Act does not regulate farmers
that, in the normal course of business, use manure on their lands. In a
case where a third party takes manure from a CAFO and applies it to the
land (offsite) that party could be subject to regulation under the
Clean Water Act. If that party develops and implements an appropriate
comprehensive nutrient management plan, the operator would qualify for
the Clean Water Act's agricultural stormwater exemption and, thus,
avoid regulation of its stormwater-related discharges. EPA will provide
additional information on land application in its forthcoming CAFO
permitting guidance.
Question 15. How does EPA plan on using individual permits vs.
general permits? Does EPA or the States make the determination of which
permit to issue? Is there any type of size determination being
discussed as an automatic individual permit? If yes, are there any
other factors taken into consideration other than size?
Response. The Unified AFO Strategy encourages the use of general
NPDES permits for most CAFOs. There are some situations, however, where
a general permit may not be appropriate, including for exceptionally
large operations, new operations undergoing significant expansion,
operations with historical compliance problems, and operations with
significant environmental concerns. EPA plans to discuss individual
CAFO permits more fully in its forthcoming CAFO permitting guidance.
Those States with an authorized NPDES program have discretion to
determine whether to use general or individual permits, particularly
where a State develops an NPDES program that provides a comprehensive
response to environmental issues at CAFOs. EPA will make that
determination for non-authorized States.
Question 16. The strategy discusses new facilities (1,000 hd. )will
have to get individual permits? Why does a general permit not suffice?
Is the number the sole issue in making this determination or are there
any environmental concerns taken into account?
Response. There is a correlation between number of head and amount
of manure produced. To properly dispose of large amounts of manure
requires large amounts of land, which may or may not be available.
Additionally, the public has stated they want to be notified of new,
large operations in their area that could affect their health and water
quality. Public notice is an important component of individual permits.
Question 17. The time line for this strategy is very ambitious. A
draft model permit is supposed to be out in May and then final in
August. The Strategy then states that the priority permits (15,000-
20,000) will be issued by January of 2000. Is this not an extremely
short time for States to implement 20,000 permits when EPA claims there
have currently only been 6,000 permits issued since the beginning of
this program? How will EPA help the States that do not have the
financial capability?
Response. As described in the Unified AFO Strategy and under the
current regulations, EPA estimates that a total of 15,000-20,000 CAFOs
will ultimately need to have NPDES permits to address the Strategy's
three permitting priorities: (1) facilities with significant manure
production; (2) facilities with unacceptable conditions; and (3)
facilities that are significantly contributing to water quality
impairment. There are approximately 10,000 CAFOs with significant
manure production. The other two permitting priorities (unacceptable
conditions and significant contributors to water quality impairment)
include approximately 5,000-10,000 CAFOs.
The Strategy discusses the short-term objective of issuing
Statewide general NPDES permits to cover most CAFOs with significant
manure production by January 2000. Statewide general permits are
designed to cover a large number of a particular type of facility and
thus only one is needed for each State. Since individual permits may be
more appropriate for some CAFOs with significant manure production, the
estimate of the CAFOs that need to have general permit coverage by
January 2000 will be somewhat less than 10,000. EPA believes that
because States will use Statewide general permits to cover CAFOs with
significant manure production, the January 2000 objective is feasible.
The remaining CAFOs with unacceptable conditions or that are
significantly contributing to water quality impairment will be covered
by NPDES permits by about 2002. Although EPA is emphasizing these
permitting priorities, it is important to note that CAFOs have been
required to have NPDES permits since 1976.
As a condition of NPDES authorization, each authorized State had to
demonstrate that it had the necessary legal authority and resources to
carry out the program. EPA expects authorized States to fully implement
the NPDES program for CAFOs. In recognition of NPDES-authorized States'
differing circumstances, the Strategy does, however, provide several
types of flexibility.
First, EPA recognizes that some States may be implementing
permitting programs under State law that meet or exceed the
requirements of, and, therefore, are functionally equivalent to the
NPDES program. Where an NPDES-authorized State indicates an interest in
amending its NPDES program authorization to recognize an existing State
permit program and can demonstrate that such a program meets the NPDES
requirements, EPA is willing to work closely with the State to amend
its authorization.
Second, because of differences in workload and resources among
authorized States, EPA is providing flexibility for States in the
issuance of permits for CAFOs with fewer than 1,000 animal units (AUs).
While NPDES-authorized States are expected to issue general permits to
the largest CAFOs (greater than 1,000 AUs) by January 2000, States will
have until the end of 2002 to issue permits to CAFOs with fewer than
1,000 AUs. EPA acknowledges that some States may even need additional
time beyond 2002 to issue permits for smaller CAFOs.
A final area of flexibility relates to the schedule for issuing
individual permits to certain CAFOs. Although these individual permits
should be issued as expeditiously as possible, EPA and States should
consider State-specific circumstances such as the total number of CAFOs
with greater than 1,000 AUs, the need to issue individual permits to
new or exceptionally large facilities, and the availability of
technical assistance for development of comprehensive nutrient
management plans. States may give permitting priority to impaired water
bodies (such as 303(d) listed waters or those identified in State water
quality management plans). In addition, where a State develops an NPDES
program that provides for a comprehensive response to environmental
issues at CAFOs, EPA will generally defer to an authorized State's
judgment with respect to the use of individual or general permits.
In addition to the flexibility offered in the Strategy, EPA
received an increase for fiscal year 1999 in Clean Water Act (CWA)
section 106 grants for State water quality program administration, and
requested continuation of the increase in section 106 grants for fiscal
year 2000 as well. These additional funds can be used by States for
programs (including inspections) to address concentrated animal feeding
operations or CAFOs, which are regulated under the CWA permitting
program.
Question 18. Do you think every concentrated beef cattle feeding
operation over 1,000 head should have a general permit? (Yes or no). If
yes, what was the environmental consideration taken into account in
making that determination and do you not have to discharge or have the
potential to discharge into the waters of the United States in order to
need an NPDES permit? How could a decision based solely on a number
answer a permitting question?
Response. EPA's position is that most AFOs with greater than 1,000
AUs are CAFOs and should be covered by an NPDES permit due to the
quantity of manure generated. Further, it is EPA's belief that many of
the largest CAFOs (greater than 1,000 AU) have had discharges in the
past and/or have a reasonable likelihood for future discharges and
therefore should be required to seek coverage under a NPDES permit.
After an application has been received, it will then be determined
whether a permit is appropriate.
Question 19. The implementers of this strategy will be regional
directors and States. There is in many situations of regional
administrators not agreeing with EPA headquarters and in some cases not
following the direction of headquarters. Is that not a more immediate
problem that faces the agency? How are we to know the regions will
follow EPA headquarters interpretation of this strategy?
Response. EPA will continue to work closely with the Regions and
States to ensure understanding of the AFO Strategy.
Question 20. The Strategy was written by many individuals who had
never been on a cattle feedlot.The ones that been on a cattle feedlot
may have gone to a 2000 head lot but never visited a 150,000 head
feeding lot. How does EPA justify regulating an industry that officials
at all levels have admitted to knowing very little about? How is EPA
clarifying the issue of poor communication between regions, States, and
communities and how does EPA plan on dealing with this problem in the
future?
Response. The Strategy was written by representatives of USDA and
EPA who had a solid base of experience in agriculture and livestock
issues. The strength of the AFO Strategy is that EPA and USDA brought
their very different yet complementary experiences together in a full
partnership. EPA and USDA are committed to continue to work closely
with the States and regional counterparts to help ensure a common
understanding and level playing field.
Question 21. During your testimony before the Senate VA-HUD
Appropriations Subcommittee, you expressed the need for the Clean Water
Act to be amended to allow Federal authority over nonpoint sources.
Could you please clarify this comment? Have you come to the conclusion
that all State NPS programs are failing?
Response. Under the Clean Water Act, States have, and should
continue to have, the lead responsibility for developing and
implementing NPS programs and controls. The Administration has long
supported a framework of voluntary and incentive-based approaches as
the primary mechanism for controlling nonpoint sources of pollution and
making progress toward meeting water quality standards. EPA has
encouraged States to build strong nonpoint source management programs
and to use their best judgment in determining the appropriate mix of
voluntary and regulatory tools to address the individual circumstances
in each State.
EPA and the States have recognized for many years that there is a
need to improve and expedite implementation of the overall nonpoint
source program. In 1995 and 1996, EPA and the States worked closely and
cooperatively together to develop a set of nine key elements which
characterize an effective State nonpoint source program. These nine key
elements are set forth in detail in section 319 program and grants
guidance published by EPA in May 1996; that guidance was endorsed in
writing by the Association of State and Interstate Water Pollution
Control Administrators. At this point, virtually every State in the
United States is working expeditiously in cooperation with EPA to
upgrade its State 319 management program. The Agency expects this
process to be complete in fiscal year 2000.
EPA and USDA have worked closely on the development and
implementation of the Clean Water Action Plan to improve the
effectiveness of voluntary and incentive-based programs at the Federal
level. The Administration also supports the development of State and
local authorities to provide a back-up mechanism where voluntary
approaches fail to achieve the desired results. In fact, President
Clinton's Clean Water Initiative (February 1994) outlines such a
strategy and also includes a proposal that would allow EPA to take
enforcement action in extreme cases where State efforts have failed or
a State has failed to act. When Congress takes up reauthorization of
the Clean Water Act, the Administration would like to discuss
opportunities to strengthen and improve our voluntary and incentive-
based programs and, within the context described above, provide
appropriate back-up enforcement authorities.
______
Statement of Dan Glickman, Secretary, Department of Agriculture
Mr. Chairman and members of the committee, thank you for inviting
me to discuss the Administration's Clean Water Action Plan. Thank you,
Chairman Chafee and Senator Baucus, for your continued attention to the
important issue of the health of our Nation's water.
I am pleased to be here along with Environmental Protection Agency
(EPA) Administrator Carol Browner. I am also accompanied by Under
Secretary Jim Lyons, who represented me as co-chairman of the
President's Clean Water Action Plan team.
Both the United States Department of Agriculture (USDA) and EPA
share a common mission helping individuals and communities restore and
protect the Nation's water resources. The Clean Water Action Plan, that
President Clinton and Vice President Gore released in February 1998,
provides a blueprint for how USDA, EPA, the Department of Interior, the
Department of Commerce, the Department of Defense, and other Federal,
State, and local partners will work together to continue the progress
in water quality improvement we have made over the last quarter
century.
USDA has a unique role protecting quality and quantity of water
resources in the United States. The Forest Service's management of
public forestlands play a critical role determining the quality and
quantity of waters that flow from the headwaters of most of the major
river systems in the West. In addition, the Natural Resources
Conservation Service (NRCS), in concert with local soil and water
conservation districts, helps to guide the stewardship of private farm,
forest, and ranch lands downstream from these headwaters, to ensure
that the quality of the Nation's waters are not impaired. Together, the
Forest Service and the NRCS are also working in urban and suburban
areas to reduce storm water runoff and sedimentation through urban and
community forestry and conservation programs.
background
The Clean Water Action Plan was developed through a cooperative
budget planning effort. It sets strong goals and identifies the tools
and resources to protect public health and restore our Nation's
precious surface and ground waters. It is a broad plan that utilizes
existing programs and funding, as well as potential new investments to
address problems in our watersheds. Significantly, the plan emphasizes
collaborative strategies built around watersheds and the communities
they sustain--a new component the President and Vice President have
brought to the Federal strategy to revitalize our water resources.
Agriculture plays an important role in protecting and enhancing our
environmental quality of life. Sound environmental practices, such as
conservation buffers, conservation tillage, forest management, and
integrated pest management, help improve water quality, soil health,
and wildlife habitat, keeping our agricultural and forestlands
economically sustainable and our farmers, ranchers, and foresters
globally competitive.
In addition, we made a concerted effort to involve the public in
developing the plan. For example, in putting together the Unified
National Strategy for Animal Feeding Operations, USDA and EPA co-
sponsored 11 national listening sessions to discuss the draft strategy
and, more importantly, to receive the public's comments. Many of these
sessions were co-chaired by USDA Deputy Secretary Rich Rominger and
Under Secretary Jim Lyons. We also managed a hotline for the public to
receive clarification about the draft strategy. Together, these efforts
generated about 1,800 written comments from the public, in addition to
the 300 oral comments at the listening sessions.
usda's clean water action plan activities
The Clean Water Action Plan sets ambitious goals for improving the
quality of water resources, and the Department of Agriculture will play
a key role in achieving them. In addition to the Forest Service's
present investment to improve watershed health on the national forests,
the Fiscal Year 2000 budget request includes funds to accelerate the
maintenance of needed national forest roads and the obliteration of
roads no longer essential for rural commerce or administrative or
recreational access. The Forest Service will be central to developing a
unified Federal policy for managing watersheds administered by all
Federal land management agencies; a draft of this policy is currently
being prepared for publication in the Federal Register for public
comment. NRCS provides technical and financial assistance to farmers,
ranchers, and rural communities on water quality and quantity issues
and also has a leading role implementing the plan. Through its field
structure, NRCS works directly with the land owners and provides
technical assistance through its Small Watersheds Program,
Environmental Quality Incentives Program, Wetlands Reserve Program, and
Resource Conservation and Development Program, all of which play an
important role in improving and maintaining water quality.
Also, USDA has enrolled over 30 million acres in the Conservation
Reserve Program (CRP), which idles agricultural land for 10- to 15-year
periods. The resulting grassland or woodland filter runoff water and
create valuable wildlife habitat, among other amenities. A new feature
USDA has added to the CRP is the Conservation Reserve Enhancement
Program (CREP), which establishes a Federal-State partnership to
encourage farmers and ranchers to remove sensitive lands from
agricultural use. In Oregon and Washington, for example, CREP funds
will be used to protect streamside buffers critical to water quality
and salmon restoration. In Maryland, the CREP will enroll lands
essential to efforts to restore the water quality of the Chesapeake
Bay. In total, there are 7 CREP programs in place, and several others
under development.
Mr. Chairman, I want to emphasize two key elements of the USDA role
in improving the Nation's waters through implementation of the Clean
Water Action Plan. First, as it applies to private lands, the Clean
Water Action Plan emphasizes voluntary approaches to solving problems,
a key component of the strategy USDA has used since the Dust Bowl era
of the 1930's, to assist farmers and ranchers in conserving our natural
resources.
Second, the Department's natural resource conservation and
environmental protection activities will continue to involve the public
through locally-led conservation, involving people at the local level
to identify various private, local, State, and Federal programs and
funding sources that would help them best to meet goals.
For example, the community of Squaw and Baldwin Creeks, Wyoming,
exemplifies the meaning of locally-led conservation. The Squaw and
Baldwin Creeks contributed significant amounts of silt and nutrients to
the Popo Agie River, primarily due to the subdivision of large grazing
areas into small ranchettes. The resulting concentration of livestock
caused the stream banks to become badly eroded, and storage capacity of
a reservoir was greatly reduced by sedimentation and trout habitat
degraded. Using the locally-led conservation approach, the Squaw and
Baldwin Creeks Watershed Rehabilitation project began in 1990,
installing erosion and sediment control conservation practices,
restoring stream riparian habitat, and improving grazing practices.
They have improved the irrigation and fishery capabilities in the
watershed, and the restored natural, meandering pattern of the creeks.
These efforts have focused community involvement and education.
People who were at first skeptical of the project joined the effort
when they saw the water getting clearer, demonstrating how voluntary
efforts of local people, who know and understand the natural resource
needs of their community and watersheds, can address their local needs
and concerns. We believe we can apply these experiences nationwide to
achieve the goals contained in the Clean Water Action Plan.
In addition to technical and financial assistance for farmers and
ranchers, we also need to make further investments in research and
development. The Agricultural Experiment Stations and Cooperative
Extension system, coordinated by the Cooperative State Research,
Education, and Extension Service (CSREES) along with the Agricultural
Research Service (ARS) have been active for many years in research and
development that apply to water quality improvement and protection. ARS
recently held a nationwide conference to assess current research work
being done by the agency on animal feeding operations, to improve
coordination among research efforts, and to plan future activities.
Fourteen land grant universities have formed a nationwide research and
extension consortium to focus on animal manure management issues. Most
State extension programs have developed handbooks, training material,
and offer training on water quality, manure, and nutrient management
for agricultural producers.
conclusion
As Secretary, I believe that a healthy and sustainable American
landscape, to which an abundant supply of clean water is critical, is
one of the most important legacies we can leave to future generations.
Through our efforts to implement the Clean Water Action Plan, I firmly
believe we will continue the progress made during the past quarter-
century. I look forward to working with you and the Congress to protect
the Nation's waters and thank you, Mr. Chairman, for the environmental
leadership you have provided during your many years of public service.
I would be pleased to answer any questions that you may have.
______
Responses by Secretary Dan Glickman to Additional Questions from
Senator Chafee
Question 1a. One of the key actions identified under the Clean
Water Action Plan is for the Department of Agriculture (USDA) and the
Department of the Interior to develop a Unified Federal Policy to
enhance watershed management for the protection of water quality. The
Federal Government currently owns 22 percent of all land nationwide. In
certain western States, such as Arizona and Oregon, the Federal
Government may own up to 60 percent of all land. According to a
recently released Government Accounting Office report, Arizona and
Oregon attribute 50 percent of their water quality problems to non-
point source pollution from Federal lands.
What actions will your draft policy take to address the problem of
Federal water pollution, and how will you ensure that these actions are
implemented?
Response. The draft policy proposes that Federal land and resource
management agencies move toward a more consistent approach to the
watershed-based management of Federal lands. The policy proposes 18
specific actions that address water quality issues on Federal lands,
and includes a proposed implementation plan to assure implementation by
Federal agencies.
Question 1b. In addition, what steps have you taken to ensure that
not only other Federal agencies, but the States, local industry,
environmental groups, and other stakeholders also have an opportunity
to participate?
Response. States, tribes, and other interested parties will have
ample opportunity to review and comment on the draft policy, and to
participate in the implementation of the policy's components. One of
the main tenets of the draft policy is greater cooperation with State
and tribal governments in watersheds that include Federal land, and
greater public participation in resource management. In developing the
draft policy, we plan a period of consultation with States and tribes,
followed by publication of the draft in the Federal Register with a
public comment period, and a number of public listening sessions across
the country to allow for participation by all interested parties.
Question 1c. Finally, when do you intend to release your policy?
Response. A draft Unified Federal Policy will be published in the
Federal Register later this year, following the consultation with the
States and tribes.
Question 2a. According to the 1999 report on the Clean Water Action
Plan, agriculture accounts for approximately 70 percent of the
identified water quality problems in assessed rivers, 49 percent in
lakes, and 27 percent in estuaries. Some have criticized the accuracy
of this information, citing the heavy reliance on evaluated data,
rather than actual monitoring.
Could you please comment on the accuracy of this monitoring data?
Response. USDA does not question the accuracy of data obtained from
monitoring. In fact, we support all efforts to monitor water quality
using scientifically-sound techniques, and we encourage increased use
of monitoring. A problem with the referenced data is that it was not
evaluated with a consistent process.
Question 2b. Do you agree with the assessment that agriculture is
the primary cause of water quality impairments?
Response. USDA does not agree with the manner in which the water
quality assessments have been portrayed. The Clean Water Action Plan
(CWAP) first-year report references information provided by States for
their Clean Water Act Section 305(b) reports to the Environmental
Protection Agency, based on 1996 information. In 1996, States and
tribes surveyed 19 percent of the total 3.63 million river miles in the
Nation, or just 693,905 miles. This 19 percent sample did indicate that
impairment exists in 36 percent of the river miles, or 248,000 miles;
about 70 percent of the identified water quality problems in the
impaired rivers, 49 percent in lakes, and 27 percent in estuaries could
be attributed to agriculture. We are not convinced that a survey of 19
percent of the river miles is reflective of the remaining 81 percent,
nor are we convinced that what is found on 248,000 river miles is what
will be found on the remaining 2.94 million unsurveyed miles.
Additionally, what the CWAP first-year report did not indicate is
that 64 percent of the surveyed river miles fully supported all of the
designated uses for the water. Some form of pollution or habitat
degradation impairs the remaining 36 percent of the surveyed river
miles. Siltation was identified as the most common pollutant.
We do not intend to suggest that our Nation's waters are not
impaired, or that agricultural operations do not contribute to nonpoint
sources of pollution. However, we would prefer that more miles of our
rivers and water bodies be surveyed, so that a more accurate assessment
can be made. We would also prefer that a more accurate and complete
description of the findings be used.
Question 3a. In recent years, we have witnessed a significant move
toward consolidation; there are fewer operations producing more
animals. Between 1978 and 1992, the average number of animal units per
operation increased by 134 percent for hogs and 176 percent for egg
laying poultry. According to the 1997 Agricultural Census, 3.6 percent
of the farms are responsible for 56 percent of the market value of all
agricultural products sold.
Do you expect this trend toward consolidation to continue?
Response. Animal agriculture has been transformed from an
extensive, land-based activity to a specialized, capital-intensive
activity. Although the trends toward consolidation (i.e. larger animal
feeding operations) have been underway for many years, the changes from
1992 to 1997 in the Agricultural Census are particularly dramatic. The
number of farm operations with animals fell by 25 percent from 1992 to
1997, and USDA does not see any reason to expect this general trend to
change in the near future.
Question 3b. How is the USDA working with farmers to ensure that,
as these operations increase in size, they are encouraged to mitigate
their environmental impacts?
Response. USDA conducts research, facilitates technology transfer,
and provides information, education, technical and financial assistance
to help farmers mitigate the environmental impacts of their animal
feeding operations (AFO). Most information on the environmental impacts
of larger scale AFOs, however, is anecdotal. USDA, in conjunction with
industry groups, other Federal agencies, the land grant college and
university systems, and others, need to further examine the
environmental impacts of larger scale AFOs, and better define their
needs.
Question 4a. The joint Unified National Strategy for Animal Feeding
Operations lays out a very ambitious goal for its voluntary program. By
2008, USDA and EPA will encourage over 450,000 animal feeding
operations to develop and implement comprehensive nutrient management
plans. Despite this tremendous challenge, NRCS staffing levels have
decreased considerably over the years. In 1989, technical assistance
for conservation operations had 9,560 full time equivalents; the
estimated figure for 2000 is 8,769. In 1989, watershed operations and
small watershed authorities had 1,396 full time equivalents; the
estimated figure for 2000 is 586.
At existing staffing levels, how long do you estimate it will take
to develop nutrient management plans for all 450,000 animal feeding
operations?
Response. Successful implementation of the Unified National
Strategy for AFOs will require NRCS to deliver more comprehensive
technical assistance to develop and implement comprehensive nutrient
management plans, as identified in the Strategy. Delivery of this
assistance to AFOs through voluntary conservation programs will need to
be greatly accelerated to achieve this goal, especially considering
that NRCS is only able to assist roughly 10,000 AFOs per year through
ongoing programs. At the current rate (10,000 per year), assuming
450,000 animal feeding operations request NRCS assistance, it will take
about 45 years to assist all AFOs.
Question 4b. How do you encourage farmers to voluntarily develop
nutrient management plans if you cannot provide adequate technical
assistance?
Response. The Unified National Strategy for AFOs identifies the
need to build capacity for comprehensive nutrient management plans.
USDA recognizes that in order to meet the goals of the Strategy, USDA
alone cannot address the anticipated workload. USDA will facilitate and
encourage participation by soil and water conservation districts, State
conservation agencies, the Cooperative Extension System, and private
sector consultants, through training certification and other activities
to increase the number of certified specialists to assist with
comprehensive nutrient management plan development. The Strategy also
identifies the need to secure additional funding to support increased
technical and financial assistance to meet the needs of voluntary
participation.
Question 5a. The committee has heard from a number of sources that
the agricultural sector of our economy, particularly small and medium
operations, are under tremendous financial pressure.
Do small- and medium-sized operations have the resources to
implement the voluntary components of the Strategy?
Response. The goal of the Unified National Strategy for AFOs is for
AFO owners and operators to have voluntarily planned and be
implementing comprehensive nutrient management plans by 2009. In order
to help AFO owners and operators meet this goal, it is anticipated that
a large portion of the small- and medium-sized AFOs will need financial
assistance to help them implement their comprehensive nutrient
management plans. The comprehensive nutrient management plans for many
of these small- and medium-sized AFOs will require a variety of
components, including some structural elements such as manure storage
facilities and the diversion of clean water (runoff) away from manure.
The cost of these structural components can be significant, often
beyond the ability for small- and medium-sized AFO owners and operators
to pay for on their own. Financial assistance will be necessary from
either Federal, State, local, or private (for profit and nonprofit)
sources, or some combination of these.
NRCS has estimated the financial assistance need for the 298,500
AFOs likely to seek NRCS assistance by 2009 (as defined by the Agency's
field-based workload assessment system) as nearly $14 billion. This
represents an average cost of implementing a comprehensive nutrient
management plan of over $46,000 per AFO. Employing a 75 percent cost-
share rate, it is assumed the AFO owner or operator will pay the
remaining 25 percent of the comprehensive nutrient management plan's
implementation cost.
Currently, 20 States provide financial incentives to AFOs, such as
cost-share and loan assistance. Also, five States provide non-cash
incentives, such as tax relief and limited liability.
Question 5b. What incentives does USDA intend to offer to encourage
voluntary compliance?
Response. USDA intends to continue to offer technical and financial
assistance, consistent with funding appropriated by Congress, as
incentives to encourage AFO owners and operators to develop and
implement comprehensive nutrient management plans. The amount of
technical and financial assistance available, given current budget
levels for AFO work, will not be adequate for USDA to meet the needs of
all small- and medium-sized AFOs.
USDA expects to continue to make technical assistance available to
AFO owners and operators, principally through the Natural Resources
Conservation Service (NRCS) and its Conservation Technical Assistance,
Conservation Farm Option (CFO), and PL-566 Small Watershed Programs.
The Environmental Quality Incentives Program (EQIP) also will provide
financial assistance in priority watersheds and for selected
conservation practices on a statewide basis. Other USDA agencies will
play a supporting role, including the Agricultural Research Service
with research and development, and the Cooperative Extension System
with technology transfer and some technical assistance.
Question 5c. What financial programs are available to assist
farmers in implementing their management plans?
Response. The EQIP and the PL-566 Small Watershed Program are
USDA's two principal vehicles for delivering comprehensive nutrient
management plan implementation of financial assistance to AFO owners
and operators. During fiscal year 1999, these programs are providing
$65.6 million in financial assistance for AFO work, the overwhelming
majority of this money coming through EQIP. Compare the $65.6 million
available this current fiscal year to the estimated total cost sharing
needed by 2009, for 298,500 AFOs, of $14 billion. Thus, fiscal year
1999 funding levels, the available USDA contribution toward total cost
sharing needs by 2009, would be $656 million or less than 5 percent of
the $ 14 billion cost sharing need.
It is apparent that local, State, Federal, and private sector
resources will also have to contribute to AFO needs, along with
significantly increased USDA financial assistance, if AFO owners and
operators are to have the cost-share resources needed to begin
implementing their comprehensive nutrient management plans by 2009.
Question 5d. Are these programs receiving adequate funding?
Response. Funding USDA programs that offer AFO support, at fiscal
year 1999 levels in future years, will not satisfy the assistance needs
of AFO owners and operators seeking to plan and to be implementing
their comprehensive nutrient management plans by 2009. While
significantly increasing funding for such USDA programs as Conservation
Technical Assistance, CFO, EQIP, and PL-566 will help to meet the
needs, other Federal, State, local, and private sector parties must
also bring new resources to the table in a major way. Additionally, the
Administration and Congress must work together to find innovative and
creative incentives to encourage AFO owners and operators to
voluntarily adopt comprehensive nutrient management plans. Without
adequate funding and new incentives, AFO owners and operators will be
less able and likely to plan and implement their comprehensive nutrient
management plans voluntarily. This will increase the likelihood that
greater regulation may evolve from Federal and State water quality
agencies with regulatory authority.
Jointly, the Administration and Congress will need to look closely
at tax incentives, risk management insurance approaches, no interest or
low interest revolving loans, and other measures to encourage voluntary
comprehensive nutrient management plan development and implementation
by AFO owners and operators. USDA strongly believes that the voluntary,
incentive-based approach is the way to accomplish the goals of the
Unified National Strategy for Animal Feeding Operations. Adequate
technical and financial assistance and new incentives will be essential
if the voluntary approach is to succeed.
______
Responses by Secretary Dan Glickman to Additional Questions from
Senator Crapo
Question 1. In the draft Animal Feeding Operation Strategy, it was
unclear as to how winter calving pastures for beef cattle would be
treated. In Idaho, due to cold winters and limited private ground, a
large number of ranchers gather their cows in one location for calving.
Do you agree that it is unnecessary and unfair to treat these ranchers
like you would a large feedlot?
Response. The aspects of cow-calf operations, and specifically
winter calving in a central location, are not clearly stated in the
Strategy. However, based on present EPA National Pollutant Discharge
Elimination System permit requirements and the individual State
requirements, the conditions under which a cow-calf operation would be
treated like a large feedlot rests with EPA and the State water quality
agencies where the facility is located.
Question 2. How successful has the EQIP program been? If very, then
should much of the implementation of the comprehensive CAFO strategy be
handled on this or a similar cooperative, incentive-based basis?
Response. EQIP has been a very successful program. In the first 2
years of the program, over 44,000 contracts have been approved for over
$320 million. However, these contracts were only able to meet one-third
of the demand for the program. We project the demand for EQIP to
increase in future years, as more livestock producers request
assistance to implement comprehensive nutrient management plans,
including agricultural waste management systems. We do intend for EQIP
to be at the very heart of USDA programs to assist livestock producers
with animal feeding operations.
Question 3. Without proper attention to the cost of implementation
and provision of resources to the producer, this program will not be
effectively implemented nor done on a voluntary basis. Will the USDA
insist that EPA tailor implementation to the availability of assistance
to farmers and ranchers?
Response. The Unified National Strategy for Animal Feeding
Operations (AFOs) is not a new regulation or program, nor is it a
substitute for existing Federal regulations. It does not impose any
binding requirements on USDA, EPA, the States, tribes, localities, or
the regulated community. The USDA and EPA goal is for AFO owners and
operators to take actions to minimize pollution from AFOs through the
development and implementation of technically sound comprehensive
nutrient management plans. USDA and EPA intend to promote, support, and
provide incentives for the use of sustainable agricultural practices
and systems that minimize water quality and public health impacts from
AFOs. For the fiscal year 2001 budget, the Secretary of Agriculture
will request additional Conservation Technical Assistance funds, along
with additional financial assistance funds from the Environmental
Quality Incentives Program (EQIP) and the Small Watershed Protection
Program (PL-566). These funds will assist in the development of 298,500
AFO comprehensive nutrient management plans over the next 10 years.
Question 4. Federal crop insurance requires farmers to implement
management practices to address weather-induced losses to crop yields.
Could similar risk management tools be established to manage water
pollution risks in an innovative and market-based incentive basis?
Response. Yes. Increasing use of risk management has potential to
help producers reduce application rates for fertilizers and pesticides,
while insuring against crop damages from specific perils, such as
rootworm damage in corn. The Administration's Clean Water Action Plan
included a key action stating that USDA will work with private
insurance companies and foundations to review the feasibility of
providing an insurance program that enables producers to offset their
risks of using new technologies to manage fertilizers and pesticides to
prevent pollution. It is also supported by such groups as the American
Farm Bureau Federation.
The Natural Resources Conservation Service (NRCS) has supported
these efforts, both financially and institutionally. The State of Iowa,
led by the Iowa Farm Bureau and private insurance companies, has
undertaken a 3-year effort to develop risk management insurance to
increase nutrient management adoption.
NRCS has been developing public-private partnerships that improve
risk protection for producers willing to voluntarily adopt conservation
technology. These risk management tools offset the risks of losses and
help prevent pollution. For the next crop year, for example, the IGF
Insurance Company will offer an insurance policy that should increase
farmer acceptance of corn rootworm Integrated Pest Management Systems,
thus reducing unnecessary pesticide applications. Farmers can also
purchase innovative risk reduction policies for improved conservation
tillage from private companies at the same time as they typically would
be buying their regular crop insurance. USDA believes that it may take
several years for these risk management tools to be fully adopted in
the marketplace.
Question 5. What is the role of NRCS in the Clean Water Action Plan
strategy? NRCS is playing a key role in carrying out many of the
actions in the Clean Water Action Plan (CWAP), in association with
other USDA agencies and the other Departments with roles in the CWAP.
NRCS is involved in several key action items, such as:
Implementation of the Unified National Strategy for Animal
Feeding Operations. This will include the technical and financial
assistance provided to producers to voluntarily develop and implement
comprehensive nutrient management plans.
Assistance to States and tribes on the development of
Unified Watershed Assessments.
Development and implementation of rangeland vegetation
classifications and inventories.
Use of the Wetlands Reserve Program for the protection and
restoration of wetlands.
Use of various USDA conservation programs to establish 2
million miles of conservation buffers on agricultural lands by fiscal
year 2002, to prevent pollution and help meet water quality goals.
______
Responses by Secretary Dan Glickman to Additional Questions from
Senator Thomas
Question 1. Has the USDA conducted any type of analysis to
determine what a producer will pay to obtain a water quality permit?
Response. USDA has not performed a formal analysis to determine the
cost of a concentrated animal feeding operation permit for each State.
The cost of permitting is controlled by individual State regulations
and varies with each State. Animal feeding operations that will be
addressed by voluntary participation, as covered under the Unified
National Strategy for AFOs, will not require a permit in most States
and therefore would not incur a permit cost. USDA is aware that
presently a permit cost can range from a few hundred to several
thousand dollars, depending on the size and type of operation, and the
State.
Question 2. What will the costs be to an agricultural producer in
order to develop and implement a comprehensive nutrient management
plan?
Response. Generally, there is no direct cost to the producer to
develop a comprehensive nutrient management plan, unless the work
involves a private consultant. Factors such as size of operation,
environmental and public health issues that need to be addressed, the
amount and percent of cost share, the kind of comprehensive nutrient
management plan components selected, and other factors will affect
overall cost. Comprehensive nutrient management plans need to be site-
specific, and are developed and implemented to address the goals and
needs of the owner or operator, as well as meet the environmental
needs.
Question 3. Beyond providing technical assistance to producers
through the Natural Resources Conservation Service (NRCS), has the
Department determined if and in what manner it will help producers stay
in compliance with the various actions called for under the Action
Plan?
Response. The Department of Agriculture's role in the Clean Water
Action Plan is to provide the support for voluntary actions by farmers,
ranchers, other rural landowners, and rural communities that will
improve and protect the Nation's water quality. USDA provides this
support through natural resource information and education, by carrying
out priority research to ensure that sound science is applied, by
transferring technology, and by furnishing technical expertise and
financial assistance that encourages voluntary action.
At USDA, we use a wide array of agencies, programs, and expertise
to demonstrate how voluntary collaboration between government and land
users can yield environmental benefits for the individual landowner,
the community, and the Nation.
The Department has the delivery system in place to effectively
carryout its actions under the Clean Water Action Plan. The
Agricultural Experiment Stations and the Cooperative Extension System,
coordinated by the Cooperative State Research, Education, and Extension
Service and headquarters at State land grant universities, along with
the Agricultural Research Service (ARS), have been very active for many
years in technology research and development that applies to water
quality improvement and protection. ARS recently held a nationwide
conference to assess current research work being done by the Agency on
animal feeding operations, to improve coordination among research
efforts, and to plan future activities. Fourteen land grant
universities have formed a nationwide research and extension consortium
to focus on animal manure management issues. Most State extension
programs have developed handbooks and training material, and offer
training on water quality, manure, and nutrient management for
agricultural producers.
The Forest Service works closely with rural communities and
neighboring landowners to develop cooperative approaches to natural
resource management, and administers the Forestry Legacy and
Stewardship Incentives Programs through State forestry agencies. The
Farm Service Agency delivers financial assistance programs to the
Nation's farmers and ranchers through the Conservation Reserve Program
and the Conservation Reserve Enhancement Program, which result in
cleaner water.
Question 4: What is the USDA/NRCS role in the AFO strategy? Does
the Department believe appropriate funding has been requested for the
program? Where does funding to implement the Clean Water Action Plan
rank among your appropriations requests?
Response. USDA/NRCS has a commitment to providing technical and
financial assistance to AFO owners and operators through voluntary
conservation programs. Delivery of the assistance will need to be
greatly accelerated to achieve the goal, ``All AFOs develop and be
implementing a comprehensive nutrient management plan by 2009.'' USDA
will need to increase annually, by at least three times, its technical
assistance funding and 10 times its financial assistance funding over
the fiscal year 2000 requested funding levels to meet the potential
demand. Providing the technical and financial assistance for AFOs to
meet the goals as identified in the Unified National Strategy for AFOs
is a high priority within USDA.
Question 5. Please explain the number of FTE's the Agency has
devoted to the Action Plan for (1) the regulatory aspects and (2) the
voluntary and incentive-based portions?
Response. NRCS is not responsible for any of the regulatory aspects
discussed in the Clean Water Action Plan (CWAP). However, USDA has
taken an active role in the development and implementation of
significant portions of the CWAP. USDA does not keep detailed
accounting records of time devoted to the CWAP, because funds have not
been specifically appropriated to address this initiative. It is
estimated that USDA has spent over 100 staff years on this effort since
its inception on February 19, 1998, with NRCS staff accounting for over
90 percent of this time. The majority of this time was spent developing
the Unified National Strategy for Animal Feeding Operations (AFO),
assisting with the Unified Watershed Assessments, and serving as
committee chairpersons and members, action team leaders, and technical
specialists. USDA has coordinated with EPA eight CWAP rollout sessions
and 12 regional AFO listening sessions (with USDA taking the lead for
half of these AFO listening sessions).
______
Statement of Gary Beach, Wyoming Department of Environmental Quality
Mr. Chairman and members of the committee, my name is Gary Beach. I
am the Administrator of the State's Water Quality Division. I am here
on behalf of Mr. Dennis Hemmer, Director of the Wyoming Department of
Environmental Quality. The Department of Environmental Quality has
primacy under the Clean Water Act to operate the surface water quality
protection programs in Wyoming. However, I am here today to talk to you
about our concerns with the Administration's Clean Water Action Plan.
In order that you understand our concerns, I need to give you a
little background. When Wyoming first developed its Non Point Source
Plan in the late 80's, we encountered a lot of concern and opposition
from the agricultural community, particularly grazing agriculture.
After several false starts, the method we selected to address their
concerns was to organize a stakeholder group to address the issues. By
incorporating the concerns of the group and other stakeholders, we
created the document, resolved disagreements, and found common ground.
In fact, this was such a success the stakeholders became advocates for
water quality and non-point source pollution. Through the Section 319
funding you provided, we implemented very successful demonstration
projects and created enthusiasm about addressing non-point source
pollution.
After about 10 years of successful implementation of nonpoint 319
projects, we were one of the States in which EPA was sued over lack of
progress on Total Maximum Daily Loads. This litigation once again
polarized our stakeholders. After going through a period of anger and
blame, we once again gathered all the stakeholders, including some of
the litigants, and collaboratively addressed the issue. Through this
collaborative process, we were able to craft a plan that addresses the
issues surrounding TMDLs and beyond that, implemented a cooperative,
local, watershed-based, approach to address these issues. To implement
this plan, the State dedicated a significant amount of money and
personnel. A number of entities, particularly the State's Conservation
Districts dedicated funds and resources to addressing the water quality
problems. This plan anticipates an aggressive 5-year monitoring program
aimed at gathering credible scientific data on all potentially-impaired
streams. We will then develop, in collaboration with the stakeholders,
watershed management plans to address all problems. We are very proud
of our progress and believe it could be a model for others. However, we
would never suggest that it be dictated to others. One of the successes
is that it is tailored to Wyoming and its stakeholders.
Enter the Clean Water Action Plan. The publication of the Clean
Water Action Plan in the spring of 1998 reignited many of the fears and
concerns we were able to work through in developing our TMDL program.
Rather than suggest a process for identifying area specific issues and
allowing these areas to develop a solution, it was a top down edict
that mandated actions whether they were appropriate or not. It was not
developed with stakeholder input. Rather, it was developed in a very
short period within the beltway. As such it is not sensitive to
stakeholder concerns and does not provide the flexibility for States to
develop plans tailored to their specific situation.
The first deliverable was the Unified Watershed Assessment. While
we have been preparing the Clean Water Act section 305(a) assessments
for many years and also prepare the Clean Water Act section 303(d)
impaired stream lists, we were now directed to develop a new plan
called a Unified Watershed Assessment. In Wyoming it took 2 years of
stakeholder input to develop our process for listing impaired streams.
As part of that process, we agreed to quit listing streams on emotion
and hearsay and to utilize credible scientific data. We then dedicated
a significant amount of money and committed to a 5-year program to
gather the credible data. This new action plan of EPA/NRCS now asked us
to duplicate this 7-year effort in as many months. We refused.
We didn't refuse to develop data comparable to that in the unified
watershed assessment. As we pointed out repeatedly, we had already
committed to doing that. We refused to duplicate our effort that was
worked out with our stakeholders. Had we agreed to the EPA/NRCS demands
for an assessment based on eight digit Hydrologic units, in addition to
betraying the agreements we made with our stakeholders, the product
would be of questionable value. We don't have good data and in Wyoming
8 digit units can extend from alpine to high desert ecosystems.
The second issue is the Clean Water Action Plan, the Confined
Animal Feeding Operation/Animal Feeding Operation, or CAFO/AFO
strategy. In Wyoming, we have been addressing feeding operations as
significant sources of pollution, for many years. We have historically
required all those over one thousand animal units or that pose a threat
to surface water to be permitted under the National Pollutant Discharge
Elimination System. Additionally, we have required construction permits
from any facility we determined to pose a threat to groundwater. We
have worked cooperatively with the Department of Agriculture and the
Conservation Districts to reach out and educate and assist producers to
properly manage feeding operations. More recently, in an effort to
reach more producers and take advantage of the excellent relationship
between operators and the Natural Resource Conservation Service, we
entered into a Memorandum of Understanding with the NRCS whereby, if
they help an operator develop a waste handling system consistent with
our requirements, that system will be recognized as having a State
construction permit.
For some reason, the Clean Water Action Plan has focused on CAFO/
AFO's. However, rather than assessing current efforts and the need for
more regulations, we are once again emphasizing command, control, and
enforcement. I have listened to EPA and NRCS describing the strategy to
producers. It is confusing because there is no clear delineation of
where a permit is required and producers are left without answers. In
both cases, I had to step in and assure producers that in Wyoming we
believe that we have all operations over 1000 units permitted, that we
have permitted all those we know of that pose a risk to surface water,
and that we intend to work with producers in the watershed plans to
address remaining problems, if they exist. However, I fear that the
Federal effort may destroy our good work once again. Believe me, our
collective work through the TMDL program on a watershed basis, work
that is locally-based and incentive-driven, will address animal feeding
operations where we have real problems.
I also am concerned about the role the NRCS has been assigned.
Regulators are not the most popular people on farms. On the other hand,
the NRCS has historically been seen as a partner to the producer.
Unfortunately, as more regulatory responsibilities have been assigned
to NRCS, that acceptance is eroding. As I noted, we have used NRCS as
an effective means of delivering water quality information and
practices to the producer. I fear that the duties outlined in the Clean
Water Action Plan may jeopardize that ability.
In conclusion, I believe the idea of a holistic approach to clean
water is imperative. Likewise, better coordination between the Federal
agencies is sorely needed. I believe the results desired are already
identified in the Clean Water Act. If the Clean Water Action Plan only
outlined those two needs and emphasized the desired results in the Act,
it would be a valuable document. Unfortunately, it is a command and
control document that goes far beyond the tenants of the Clean Water
Act. It was written without stakeholder input in language that is not
sensitive to stakeholder concerns.
My suggested solutions are these:
1. The President should withdraw the Clean Water Action Plan and
the EPA and NRCS should withdraw the Unified Watershed Assessment and
CAFO/AFO strategy.
2. Each State should be given the opportunity to provide
functionally equivalent programs that meet the overall objectives for
addressing non-point sources of pollution in a holistic and
collaborative manner.
3. New regulatory programs should not be developed or initiated
until a State-by-State assessment has been made to verify the need for
new regulations. We might just find there isn't a national need, rather
selected States or areas may need support and assistance to strengthen
their programs.
The Clean Water Action Plan is another example of focusing on the
process rather than the results. Allow us to focus on the results and
we can achieve more improvement to water quality with buy-in rather
than anger and fear.
______
Responses by Gary Beach to Additional Questions from Senator Chafee
Question 1a. Mr. Beach, you mention that you are in the process of
gathering credible scientific data on all potentially-impaired streams:
What is your criteria for credible data?
Response. In 1997, after TMDL litigation was filed in Wyoming and
before developing our 1998 Section 303d list of impaired water bodies,
we went through an extensive process with our stakeholders to define
the criteria that we would use to decide if a water body was impaired.
We did this because we had a real credibility problem with many of our
stakeholders who felt that our listing process for 1996 was terribly
flawed. From these collaborative efforts we defined credible scientific
data as:
(a) A combination of chemical, physical, biological, and historical
data, wherever this data is available or collectable, that presents a
complete picture of the system. For example, biological and chemical
data may not be easily collected on ephemeral streams in which case you
may only rely on physical and historical data.
(b) Acceptable data for chemical, physical, and biological may be
qualitative or quantitative as long as the methods followed to develop
the data are:
1. Published methods that have been subjected to a peer
review process, and
2. The methods follow strict protocols so that the data
collected are reproducible, scientifically defensible, and free
from preconceived bias.
(c) We can also consider ``historic data'', which may not meet the
scientific rigors described in b. above, but is valuable factual
information to add perspective to the analysis of the water body's
ability to support designated uses. Historic data may include
quantitative information, like old USGS water quality data, or
qualitative anecdotal information, like a historic description of the
conditions of the water body.
In 1999, our State Legislature codified this concept into State law
requiring that all decisions made by our agency for designed uses and
impairment of use must be supported by credible data. (See Wyo. Statute
35-11-302(b)). We are currently adopting rules to implement this new
law. This issue has been very important to stakeholders in the private
sector. They feel strongly that if government is going to list a water
body as impaired, go through the process of creating a TMDL, and ask
people to take corrective actions, they want to be sure that the water
body is in fact impaired.
Question 1b. Approximately how much is Wyoming investing in its
monitoring program?
Response. In response to the TMDL litigation, we developed a 5-year
monitoring plan that will give us a basic understanding of the water
quality conditions in the major basins of the State. After we do this
initial screening, we will have to return to many sub basins and refine
our sampling where we find evidence of potential problems. Our local
conservation districts are also gearing up to collect scientifically
valid data, and we have encouraged the Federal land management agencies
to do the same. My best estimate of our collective investments during
1999 are:
State DEQ: Greater than $1 Million per year for data collection and
lab analysis.
Conservation Districts and Wyoming Dept. of Agriculture:
Approximately $720,000.
Federal Land Management Agencies: Making some investment, but not
sure how much.
NRCS: Technical assistance in planning, not sure of the dollar
amount.
Private Organizations: Very limited investment, however, some NPDES
dischargers are volunteering to do additional in stream data
collection.
Section 319 Projects: Estimate about $50,000.
Total Estimated Expenditure: Greater than $1.7 Million
Question 1c. Will Wyoming take action to address water bodies which
are known to be impaired while additional data is being gathered on
water bodies suspected of being impaired?
Response. Yes, for water bodies that have been listed, we will
proceed with the development of a TMDL or watershed management plan
(depending on the preference of the local stakeholders). This has been
case with our 1998 303d list of impaired water bodies. Please realize
that as we move forward with developing TM DLs or watershed management
plans, more rigorous field sampling may be necessary to identify
sources and allocate responsibility.
Question 2. If you have already issued NPDES permits to operations
with over 1000 animal units and those operations that pose a threat to
surface water bodies, haven't you finished your obligations under the
Unified Animal Feeding Operations strategy? What additional operations
would you be required to permit under the Strategy?
Response. Yes, we agree that we should have completed our primary
obligation under the AFO strategy. However, in addition to permitting
the CAFOs, we expect the following additional obligations to come out
of the Unified Animal Feeding Operation strategy:
1. EPA has signaled their intention to go to rulemaking to update
their requirements for CAFOs and to reevaluate the need for permitting
AFOs from 300 AUS and up. The strategy includes providing guidance to
States for ``model permits'' and states that all permits should include
a comprehensive nutrient management plan (CNMP). Special types of
permitting are mentioned when these operations are located in water
quality impaired watersheds. From these intentions I expect new
national standards resulting in new requirements that we must respond
to at the State level and thereafter, incorporate them into existing
permits.
2. I look for our involvement in the development of the initial
CNMPs, to assure they meet State water quality protection requirements.
3. If NRCS cannot meet the demand to develop CAMP for all AFOs,
then we must come to some agreement on how we will certify
professionals to do this work. We will probably have some participatory
role in this process.
4. Finally, we will want to encourage AFOs (particularly the
smaller operations) to use the ``good faith'' incentive of the strategy
and avoid permitting if this option is feasible. This will require
coordination efforts to direct operators through this alternative
process. I acknowledge, this is time well spent as it would achieve the
desired results and reduce our administrative workload for processing
permits.
Question 3. My understanding is that a firewall has been created
between the EPA and USDA with respect to regulation. According to the
strategy, the NRCS is only responsible for providing technical
assistance to farmers. In what way is the NRCS role in the strategy
regulatory?
Response. I would suggest that you view this situation from a rural
landowner's perspective. In the eyes of a skeptic public, perception is
reality. We realize that the working relationships between landowners
and the SCS (now NRCS) was built through years of trust and respect. If
we loose this element of trust, we loose the relationship.
In rural America you will perceive the following:
1. That NRCS is tasked to develop CNMP on all operations 2008
(sounds like a regulatory approach). That operators must accept NRCS's
technical specifications for an acceptable CNMP. If NRCS personnel are
unable to do the CNMP, the operator must hire someone certified by the
NRCS/State to do this work and achieve the goal that all AFOs have a
CNMP.
2. USDA sits shoulder to shoulder with EPA to present and defend
the CWAP and AFO strategy. At the field level, NRCS staff presented and
support the AFO strategy in front of their customers.
3. Word got out that EPA had submitted a FOIA request to NRCS to
access data on AFOs. Although NRCS refused to comply with this request,
it will still have a chilling effect on the relationships between
private landowners and NRCS staff.
4. Finally, one cannot forget that NRCS staff are Federal employees
that answer to the same chief.
These perceptions in the field undermine the ``firewall'' that the
administration has attempted to build in the strategy. I realize there
are clear benefits from this joint effort, but I'm not sure they will
outweigh the damage being done at the field level. I feel strongly that
we must protect this relationship so that landowners will confide in
and receive much needed educational and technical assistance from NRCS
technical staff. This is a task that no one else is better equipped to
do.
______
Responses by Gary Beach to Additional Questions from Senator Crapo
Question 1. State regulators and the NRCS have historically been
seen by farmers as more cooperative than Federal agency officials.
Moreover, AFO operators have a long-term relationship with State
regulatory officials. Does it make more sense to ensure the voluntary
and cooperative participation of farmers to have the State continue to
take the lead in CWA regulatory matter?
Response. I am a firm believer that the State and local cooperating
agencies should take the lead role in achieving the requirements of the
Federal Clean Water Act. Yes, most States by now have established an
understanding with their operators and have put in place both voluntary
and regulatory programs that are achieving the Federal goal in a manner
that the operators can accept. These understandings and relationships
should not be jeopardized for some new notion or Federal perspective on
how we should conduct business. I keep reiterating, let's use what is
already working to achieve our goals, for that which is already working
has stood the test of time and has been accepted by our people. This
question goes to the very heart of my testimony. Before we specify a
new way of conducting business from Washington (i.e., new regulatory
programs), let's first do an inventory and see where we need to make
adjustments and then work with those few programs that need more
support. The NGA has advocated that EPA look more seriously at
accepting ``functionally equivalent programs.'' This advances the
notion that each State may have developed different approaches to
achieve the same outcome.
Question 2. Are State and regional differences significant enough
to magnify or reduce the environmental impact of AFO or resource-
industry discharges? Is it appropriate to construct a regulatory system
within a flexible framework?
Response. It is my experience that State and regional differences
are great enough that being specific on how to deal with the problems
at the national or regional level is the wrong approach. An example for
AFOs is the use of NRC's technical specifications. To determine sound
land application practices at an operation, NRCS staff considers the
local climate, soils, vegetation, geology, and depth to groundwater. In
the adjoining States of Utah, Idaho, and Wyoming we have real differing
conditions where land application of animal wastes to agricultural
lands may be an acceptable practice year round, whereas at other
locations this practice may be very limited if not impracticable. In
addition to these environmental differences, we must be responsive to
local politics. A process (or approach) that may work in one basin may
not be accepted by local people in another basin. So we need a
framework of flexibility that allows us to deal with technical and
political differences between States and within the State.
Question 3. Has enough time been allotted in the implementation
process to permit States and local governments to have ample notice and
adequate opportunity for input?
Response. I do not believe that adequate time nor opportunity was
provided for State and local governments to have meaningful input on
the release of the Clean Water Action Plan. When I say meaningful, I'm
talking about a process where stakeholders have time and access to
provide input, this input is seriously considered, and the final
product reflects a sincere effort to meet stakeholder needs. After
release of the CWAP, no opportunity was provided for State and local
governments to comment on the role out of the unified Watershed
Assessment strategy. It was delivered to States in the spring of 1998
and by October 1st we had to produce a deliverable if we wanted to
participate. The instructions in this document included a requirement
that we include public participation in the development of our State
Unified Watershed Assessment. In Wyoming, for example, we had just
completed a year long public participation process to create our 1998
list of impaired water bodies. We realized that to do the public
participation process right, we would need to dedicate at least 6 to 8
months to a public participation process. I will acknowledge that much
better public participation and outreach was provided for the role out
of the CAFO/AFO strategy. Maybe this was due in part to the false start
by EPA and the later joining of forces with USDA. As I indicated, NRCS
staff and in some cases EPA staff made a number of presentations to
local groups about the CAFO/AFO proposal. There was a formal notice and
formal solicitation for comments on the strategy. I know that NRCS/EPA
received many comments and had limited time after the comment period
closed to analyze and seriously consider the comments before release of
the final document. To EPA/USDA's benefit, I did see many good changes
in the final strategy that I think resulted from a much better outreach
and public participation process. In summary, only in the case of the
CAFO/AFO strategy would I say that there was adequate notice and
comment period for State and local governments. I'm not sure that the
opportunities that were provided for comments were meaningful.
Question 4. What reliability can be expected from a watershed
assessment process done in an abbreviated schedule? What level of
validity and consistency can be expected from this information?
Response. When doing a meaningful watershed assessment, one must
learn to gauge the right pace. I can assure you that this schedule will
vary from site to site, depending once again onsite conditions,
complexities and the political environment. A short or an abbreviated
schedule may work at certain times if the task is simple, the problem
well defined, and the people are already comfortable with the solution.
But in most watershed assessments, it will not be simple and people
must be given the right amount of time to accept the reality and move
forward with solutions they own. Please realize, He pace can be too
long in which case you can lose motivation and people will begin to
think they can avoid doing anything. I am suggesting that the pace or
schedule is site specific and will be variable. If you try to
accelerate it too fast you will lift the solutions from the local
people and they will no longer have an ownership in the problem. Once
this happens, it will be a uphill battle to achieve the desired
results.
______
Statement of John Godbee, Environmental Manager, International Paper
Company, on Behalf of American Forest and Paper Association
Mr. Chairman, members of the committee, I appreciate the
opportunity to present my testimony today on behalf of the American
Forest and Paper Association on: (1) the Administration's Clean Water
Action Plan; (2) the significant efforts of the U.S. forest products
industry to maintain and protect the Nation's waters; (3) improvements
to State nonpoint source programs that will help restore and maintain
the physical, chemical and biological integrity of the Nation's waters
and; (4) upcoming EPA proposals that require special attention.
AF&PA is the national trade association of the pulp, paper and
forest products industry. We represent approximately 84 percent of
paper production, 50 percent of wood production and 90 percent of
industrial forestland in the United States. Nationwide, there are more
than 9 million non-industrial private landowners who own 59 percent or
approximately 288 million acres of the total productive private
timberland. Most of these landowners have holdings of less than 100
acres. In comparison, forest products companies own 15 percent of the
Nation's timberland and rely heavily on the fiber supply provided by
these small landowners.
My name is John Godbee and I am Environmental Manager of Forest
Resources for International Paper. International Paper is a major
manufacturer of printing papers, packaging and wood products. We are
the largest private forest landowner in the country with over 7.5
million acres. We also have 191 operations in 46 States located
throughout the United States.
While, as stated, AF&PA also represents the manufacturers of the
country's paper supply, I will confine my remarks to our forestry
activities.
Upon release of the February 1998 Clean Water Action Plan, the
forest products industry's initial action was to: (1) evaluate the
Federal Government's proposals in light of what actually is going on in
the private sector; (2) determine if there was consistency with
industrial and non-industrial private landowner programs; and (3)
examine if the Plan recognized private sector initiatives that are
making progress in meeting the goals of the Clean Water Act. After
careful review, we believe the Plan is heavily weighted toward Federal
prescriptiveness, rather than recognizing and promoting successful
State and private sector initiatives that are making a significant
difference in water quality protection.
Back in 1994, members of AF&PA committed themselves to the
Sustainable Forestry Initiative (SFI)SM. The SFI program is
a comprehensive system of principles, guidelines and performance
measures that integrates the perpetual growing and harvesting of trees
with the protection of wildlife, plants, soil, air and water quality.
All AF&PA member companies are required to comply with the
SFISM or their membership will be terminated, as has
occurred for some. Among the water quality commitments that AF&PA
members make in subscribing to the SFI is the agreement to:
Meet or exceed all established Best Management Practices
(BMPs);
Meet or exceed all applicable State water quality laws,
regulations and the requirements of the Clean Water Act for forestland;
Establish and implement riparian protection measures for
all perennial streams and lakes and involve a panel of experts at the
State level to help identify goals and objectives for riparian
protection;
Individually, or through cooperative efforts, provide
funding for water quality research.
In 1997, AF&PA member companies began reporting on the number of
acres and miles of streams that are enrolled in wildlife and fisheries
agreements with conservation groups and public agencies that specify
on-the-ground management practices. Almost 11 million acres,
representing 20 percent of the total acres in the SFI program, and
4,286 miles of stream have been enrolled in these agreements.
As you can tell from these commitments, this effort represents the
industry's own Clean Water Action Plan and it has the full backing and
support from an Independent Expert Review Panel that monitors our
progress. The Panel consists of members from the conservation,
environmental and academic communities, Federal and State
representatives and includes the Chief of the U.S. Forest Service and
an EPA official.
Far from being a program based in Washington D.C., the SFI program
has established State Implementation Committees in 32 States that
receive more than $3.1 million from AF&PA members and allies to foster
their responsibilities to promote SFI principles.
While industrial forestland constitutes approximately 15 percent of
the Nation's forested acreage base, AF&PA members are also committed to
expanding and promoting sustainable forestry into the broader forestry
community. For example, in 1997:
Over 9,600 loggers and foresters completed comprehensive
training programs that include forestry education with over 20,000
loggers trained since 1995;
More than 86,000 landowners across the country received
information on the SFI program;
99 percent of the estimated 9,700 member company employees
who exercised SFI duties were fully trained in sustainable forestry
practices.
As the Federal agencies involved in water quality and forest
management issues work with State agencies in implementing programs to
protect water quality from the impacts of land-based activities, we
would hope that they work with the private sector in identifying areas
that will compliment our commitments.
As an example, we believe that implementation of forestry best
management practices (BMPs) through State-sponsored and directed
programs are the key mechanisms to protecting water quality in streams
and lakes. Eighteen States have recently reported that overall
compliance with BMPs across all ownerships--industry, private
landowners and public--averaged 85 percent. Although these results are
encouraging, we can do better through promotion of BMP training and
monitoring effectiveness. Therefore, AF&PA and our regional and State
forest associations strongly support funding for States to conduct BMP
effectiveness audits of forestry practices. Numerous studies show that
when BMPs are implemented, water quality is maintained. The more recent
studies conducted in Florida, South Carolina and Idaho illustrate that
when BMPs are implemented, the biological, physical and chemical
integrity of the Nation's waters are protected. We can provide copies
of these studies and others that document our claims. As we move
forward, we would encourage Federal and State officials to establish a
dialogue with the SFI State implementation committees and support
ongoing efforts in the forestry community to reach out to forest
landowners, loggers, consultants and practicing foresters on promoting
BMP implementation to protect water quality.
At this point, I'd like to shift your attention briefly to two
issues that many in the forestry and other nonpoint source communities
believe have the possibility of imposing onerous and incompatible
requirements on land management practices. First, the EPA is in the
process of issuing proposed rules to revise the total maximum daily
load (TMDL) program under Section 303(d) of the Clean Water Act. The
TMDL program is designed to assure attainment of water quality
standards by requiring the establishment of loading targets and
allocations for waters that are not in attainment with those standards.
The Clean Water Act and its implementing regulations require States to
identify these impaired waterbodies and for EPA to approve the State
lists and State-developed TMDLs for each pollutant. While we await
issuance of the proposed rules, we remain very concerned with the lack
of sufficient data used to list the 21,000 waterbodies identified by
States and approved by EPA as impaired and the methods used to
determine which activities have caused impairments. Even after these
waters have been designated as impaired, which we believe requires a
scientific water quality monitoring and sampling program conducted over
time and seasons, the determination of actual daily loads to
waterbodies and their allocations to individual activities in a stream
segment is extremely complex and expensive. We do not believe this is a
practical solution and should only be undertaken as a last resort where
absolutely necessary and where significant resources are available.
Second, under the Clean Water Action Plan (CWAP) announced in March
1998, the Environmental Protection Agency (EPA) is beginning the
process of re-examining the regulatory, legal and statutory exemptions
and definitions for defining runoff from forest roads as a nonpoint
source activity. While the industry supports the Agency's review on the
effectiveness of forest road construction best management practices,
their scientific underpinnings and how they are developed and
implemented to attain and maintain water quality, we do not believe the
Agency has the statutory authority to revise the regulations which
recognize forest roads as nonpoint sources. Under the Federal Water
Pollution Control Act and its amendments in 1977 and 1987, Congress
cleary recognized forest roads as a nonpoint source category. In fact,
several recent Federal cases specifically recognize the different
approaches taken by Congress to regulate point sources on the one hand
and to address nonpoint sources on the other. Where roads were at
issue, these courts upheld their definition as a nonpoint source.
I have one final remark, Mr. Chairman, regarding EPA's request for
additional authority and money to run a new nonpoint source pollution
control program under the Clean Water Act. All States with an active
forestry presence have State and EPA-approved BMP forestry programs
tailored to the conditions and forest types of the State. A Federal
Agency prescribing forestry BMP programs to tell us what practices we
can and cannot do would not be helpful. Likewise, we are not seeking
Federal financial assistance to implement BMPs. We do this as standard
business and operating practice. What we do need is forestry BMP
effectiveness funding for States to document their well-designed and
scientifically-based programs and additional BMP research support for
continuous improvement.
In conclusion, as EPA proceeds in implementing any of the key
actions related to forest management in the Clean Water Action Plan, we
hope that the agency recognizes the significant commitment of resources
and efforts the private sector has launched in promoting water quality
protection.
Again, I thank you for the opportunity to present these remarks,
and I'd be glad to respond to any questions.
______
Responses by John Godbee to Additional Questions from Senator Chafee
Question 1. Does the 85 percent statistic represent 85 percent of
all lands, 85 percent of all companies or neither.
Response. The States, through the State Forestry Agencies conduct
periodic BMP compliance assessments on all forest lands. States
generally use a weighted sampling system based on the proportion of
public, nonindustrial private and industry ownership. The figure of 85
percent represents a statistically weighted average of BMP compliance
across all ownerships.
Question 2a. GAO report on forest roads.
Do the BMPs implemented by AF&PA members attempt to mitigate the
damage caused by forest roads?
Response. To the best of my knowledge all State Forestry BMP
manuals include specific management criteria for roads. These include
guidelines for road location, construction, stream crossings,
maintenance and retirement. In addition, to be exempt from permitting
requirements under Section 404 of the Federal Water Pollution Control
Act, all forest road construction and maintenance activities must be
conducted in accordance with best management practices. Through
regulation, EPA has promulgated 15 BMPs for forest roads constructed in
jurisdictional wetlands. AF&PA member companies have committed to
meeting or exceeding all BMPs on wetlands and uplands they control and
promoting their use on all lands. As indicated above, compliance with
these practices on all lands is approximately 85 percent.
Question 2b. How effective are these BMPs?
Response. There are numerous studies demonstrating that when BMPs
are applied, they are very effective in protecting water quality. For
example, compliance with 8 high risk BMPs, which included 5 forest road
runoff practices in Montana on 333 sites, it was reported that 90
percent of these practices were effective in protecting water quality.
The successful implementation of these practices is evidenced by the
fact that while forest management represents the single largest land
use in this country, a very small percentage of streams or water bodies
are listed as impaired due forestry activities. The forest products
industry is very supportive of additional funding for State sampling
and monitoring programs designed to evaluate BMP implementation and
effectiveness to improve on specific practices where needed.
Question 2c. After a harvest is completed are efforts taken to
destroy the roads to prevent future erosion?
Response. Harvesting activities may require 3 road types;
permanent, temporary access and skid trails. Temporary roads and skid
trails are generally retired with culverts removed and the roadbed and/
or site reshaped and revegetated as part of the reforestation effort.
Permanent roads are stabilized using a variety of practices such as
waterbars, seeding and mulching. Permanent roads are an essential
component of forest management as they provide access for forest
management and protection from insects, diseases and destructive
wildfire.
Question 3. If the initial implementation of BMPs does not bring
the water body into compliance with WQ standards, would you then
support the development of a TMDL for the Water body?
Response. BMPs are implemented at the time of the forest management
activity to prevent water quality impairment from these activities. In
the unlikely event that the BMPs are found not to be effective in
preventing WQ impairments, foresters amend the practice to achieve the
desired results. This reiterative process recognizes the natural
phyisographic and climatic variables that must be considered by
professional foresters in conducting these activities. The setting of a
total maximum daily load (TMDL) for nonpoint pollutants does not
provide an effective process or mechanism for addressing runoff from
silvicultural practices. It is extremely cumbersome, expensive and
cannot be realistically monitored. The most effective process for
reducing loadings from a nonpoint source category is through
implementation of BMPs. In contrast the setting of TMDLs for point
source discharges provides a mechanism through the permit process to
address the cumulative contributions at the end of the pipe discharges
by linking known concentration levels and volume of flow.
______
Responses by John Godbee to Additional Questions from Senator Crapo
Question 1. Your Testimony describes the success of BMPs and the
SFI. If a forest operation conforms with State and EPA-approved BMP
program, would you consider similar CWA Plan-driven activities as
duplicative?
Response. Yes. BMPs are developed and implemented at the State
level with Federal assistance from the EPA through CWA Section 319
funding. This program has proved highly effective in developing public
private partnerships in education, training and effectiveness
monitoring. The forest industry's Sustainable Forestry Initiative
provides an excellent example of our industry's commitment to achieve
the goals of the CWA without the need for duplicative programs
administered and funded by the Federal Government.
Question 2. Your Testimony also mentions that the industry is not
seeking Federal assistance to implement BMPs. Would the industry
require additional resources to meet its obligations under the CW
Action Plan?
Response. The Forest Industry is not seeking nor does it require
additional Federal funding for implementation of BMPs. Compliance with
BMPs is viewed as part of the business of managing industrial forest
lands. We also have active programs such as the Sustainable Forestry
Initiative which promote their implementation on all lands through
industry funded training and education programs. The forest industry
would like to see more Federal support for State led BMP programs to
monitor implementation and effectiveness.
Question 3. Efforts to redefine road construction and maintenance
as a point source of pollution subject to a discharge permit would
invalidate congressional intent in establishing road maintenance as a
nonpoint source. What has been the reaction of the State Forestry
Agencies to this proposal.
Response. While the reaction varies somewhat among the States,
there is general concern that the State Forestry Agencies do not have
the manpower, resources nor funding to implement an NPDES permit
program for forest road construction and maintenance. The consensus
among State forestry agencies which operate in States with an active
commercial forest industry is that existing statutes clearly define
road construction and maintenance as a nonpoint source category. Any
changes proposed to address specific permitting requirements should be
decided at the State level.
Question 4. Can you quantify the improvements made to watersheds
based on the industries SFI program?
Response. The industry, through the American Forest & Paper
Association, academic institutions and other research organizations,
have conducted numerous watershed studies throughout the country to
examine the industry's landowner education, outreach, logger training
and on-the-ground BMP implementation programs. We have cooperated with
State forestry agencies, water quality agencies and members of the
environmental community to conduct collaborative research on forested
watersheds. The SFI program has numerous conservation, recreation and
wildlife associations as sponsors and endorsers of the program. We are
currently working with many of these organizations to begin the process
of benchmarking successes and improvements in protecting water quality
and sustainable forest management such as improvements to fish habitat
and streamside management zone corridors for wildlife habitat.
Question 5. Are State regulatory agencies failing to fulfill their
obligations under the Clean Water Act?
Response. From our perspective in the forest industry, the States,
like all of us must set priorities for responding to various programs
based on the availability of manpower, funding and the cost benefits of
various compliance options. We believe the States are generally doing a
responsible job in allocating resources and administering CWA programs
addressing the regulatory requirements for our industry.
Question 6. Are States and Federal Agencies working well under the
current rubric?
Response. The proof of the success of existing programs is best
measured by the level of implementation of the intended objectives.
Under the CWA, the forest industry bases its performance on
implementation of State and Federal BMP programs. Successful programs
exist in all States with an active commercial forest industry.
Compliance levels with BMPs are high and gaining greater acceptance and
implementation each year. Federal, State and private sector
partnerships to promote education, implementation and training are
paying big dividends in improving the health of our Nation's waters.
Question 7. What is the likely impact of the Clean Water Action
Plan requirements on this cooperative relationship and State
enforcement of the forest industry?
Response. Federal programs with a prescriptive one-size-fits-all
strategy for meeting and improving the quality of our Nation's waters
leads to the ineffective allocation of limited resources. The setting
of WQ standards for individual streams and lakes, and the development
of specific programs and practices to meet these standards is most
effective when done by the State. The role of the Federal Government in
this effort should be limited to general oversight and funding support
to assist the States in meeting the goals of the Federal CWA.
______
Statement of Daniel F. Heilig, Executive Director, Wyoming Outdoor
Council and Member of the Clean Water Network
My name is Dan Heilig and I am the executive director of the
Wyoming Outdoor Council (WOC). Established in 1967, WOC is the oldest
and largest independent non-profit conservation organization in
Wyoming. The mission of my organization is to protect Wyoming's
environment and conserve its natural resources by educating and
involving citizens and advocating environmentally sound public
policies. I appreciate the opportunity to testify today in support of
the Clean Water Action Plan.
I am also an active member of the Clean Water Network, an alliance
of over 1000 public interest groups representing environmentalists,
family farmers, anglers, commercial fishermen, civic associations,
rural policy, and consumer advocacy groups working together to
implement and strengthen Federal clean water policies. The Clean Water
Network submitted hundreds of pages of written comments on the Clean
Water Action Plan in 1997 and 1998 during the official public comment
period and members of its steering committee briefed this committee's
staff last week on the Clean Water Action Plan. I am testifying today
on behalf of the Clean Water Network as well as the Wyoming Outdoor
Council.
Encompassing nearly 98,000 square miles, Wyoming is a vast,
sparsely populated State. Approximately 49 percent of the State's land
area, about 30 million acres, is managed by the Federal Government,
primarily the Forest Service and Bureau of Land Management. The
Nation's first Park, Yellowstone, first Forest, Shoshone, and first
Monument, Devils Tower, lie within Wyoming's borders.
Although known better by its official motto as the ``Equality
State,'' Wyoming is the Nation's headwaters State. The Snake, Green,
Madison, Yellowstone, Bighorn, and North Platte rivers all originate
here, high in the Rocky Mountains. Unfortunately, despite the
extraordinary natural values of these headwaters, only one river, the
Clarks Fork of the Yellowstone, has been designated a Wild and Scenic
River.
My organization supports the Clean Water Action Plan (``Plan'')
because it focuses significant Federal resources on the most pervasive
cause of water quality impairment to Wyoming's surface waters: polluted
surface runoff. The Plan's emphasis on watersheds, rather than discrete
stream segments, makes sense given that polluted surface runoff comes
from many different and often diffuse sources spread out over large
areas. A key feature of the Plan is a $100 million increase in funding
under Section 319 of the Clean Water Act for Fiscal Year 1999 for
locally-led restoration efforts in watersheds that do not meet clean
water or other natural resource goals.
Unfortunately, not everyone in Wyoming shares our enthusiasm about
the Plan. In February of this year, the Wyoming Association of
Conservation Districts (``Districts'') and several other parties filed
a 60-day notice of intent to sue the EPA and the U.S. Department of
Agriculture in which the Districts oppose the Plan. Underlying this
effort is a fear that identifying watersheds that do not meet clean
water or other natural resource goals could ultimately lead to
regulatory action to restrict land uses and activities found to be
contributing to water quality impairment. This concern is evidently
based, in part, on their experiences with Wyoming's TMDL (total maximum
daily load) Program. Under the TMDL program, States are supposed to
identify and restore impaired watersheds by creating a list of impaired
waters and then developing and implementing restoration plans, commonly
called TMDLs. The TMDL provisions have been a feature of the Clean
Water Act since its enactment in 1972, but implementation of these
provisions has only been recent.
In 1996, using information provided by a variety of sources--
including many Wyoming Conservation Districts--the Wyoming Department
of Environmental Quality (``DEQ'') listed over 360 stream segments as
water quality limited, and therefore requiring watershed restoration
strategies or TMDLs. As far as the Districts were concerned, the larger
the list the better, since the availability of Section 319 money was
based in part on the presence of impaired water quality. Later, when
the Districts learned that TMDLs could be required for impaired
segments, they took affirmative steps to remove as many segments from
the list as possible. This effort proved successful when, in 1998, the
EPA approved Wyoming's 303(d) list containing only 63 water quality
limited segments. Over 300 segments were removed from the 303(d) list
and placed on a list requiring monitoring sometime in the next 5 years.
Since late 1996, the Wyoming Association of Conservation Districts
has focused its attention and resources on strategies to block the
creation and implementation of TMDLs. As mentioned earlier, this
strategy involves removing as many segments as possible from the 303(d)
list (without taking corrective action) and efforts to reclassify
surface waters to a lesser standard to obviate the need for pollution
limits. As a result, citizens in Wyoming today are involved in a
pitched battle to prevent the further weakening of water quality
standards by interests that seem interested in nothing but maintaining
the status quo. It is our hope that the availability of Federal dollars
and other benefits provided by the Plan and successes of neighboring
States may eventually entice the DEQ and Conservation Districts back
into the business of restoring damaged watersheds.
For the benefit of this committee, I provide an overview of the
situation in Wyoming from my vantage point.
Unified Watershed Assessments. The Unified Watershed Assessment is
the centerpiece of the Clean Water Action Plan. We considered it a
major milestone in Federal policy because for the first time it calls
on States to consider data from a variety of sources and to develop one
unified set of watershed restoration priorities by coordinating across
Federal and State programs. The fact it was done hand in hand by water
quality and agricultural agencies was a sign of progress.
Wyoming was the only State in the Nation to miss the initial
deadline for submitting a Unified Watershed Assessment. As you can see
from the map on page 5 of the EPA's first year report on the CWAP,
Wyoming was also the only State in the Nation that failed to identify
any watersheds requiring restoration efforts. The absence on the map of
such watersheds should not be construed as evidence that we have no
water quality problems in Wyoming. Rather, it reflects the Conservation
Districts' concerns that identifying damaged watersheds could trigger a
regulatory response that includes restrictions on land use or mandatory
imposition of best management practices.
It is amazing that Wyoming officials appear to feel threatened by
the Federal agencies asking them for their assessment of which
watersheds are in need of action. The Unified Watershed Assessment and
Watershed Restoration Action Strategy requirements were truly minimal
mostly just asking States where and why they wanted to direct new
Federal dollars that are allocated to address non-point pollution.
Apparently, the State of Wyoming feels that Congress should simply hand
over the cash, no questions asked.
EPA-USDA Unified National Strategy for Animal Feeding Operations
(EPA-USDA AFO Strategy). Another important part of the Clean Water
Action Plan is the EPA-USDA AFO Strategy. This strategy is simply a
road map for how the Federal agencies will work together to implement
existing Clean Water Act authority. More than 25 years ago, the Clean
Water Act identified feedlots as point sources of pollution thus
required to obtain National Pollution Discharge Elimination System
(NPDES) permits. However, these provisions have been largely ignored
until recently.
The EPA-USDA AFO Strategy describes steps to be taken over the next
5 to 10 years to implement the vision of the Clean Water Act by
permitting large-scale animal feedlots. The Strategy does not in itself
create any new rules or regulations. It does, however, describe a
timeline for updating regulations on permitting and technology
standards. These updates will require EPA to go through the formal
rulemaking process, including public comment.
As a strategy, the EPA-USDA AFO Strategy was not required to go
through the entire rulemaking process. However, it should be noted that
the EPA and USDA provided ample public notice and comment
opportunities--a 120-day comment period and 11 public listening
sessions around the country. Clean Water Network members participated
in the listening sessions and dozens of members submitted detailed
comments on the EPA-USDA Strategy.
Triennial Review a Decade Behind Schedule. Wyoming's triennial
review of its surface water standards is nearly a decade behind
schedule. Last completed in 1990, this three-year review is required by
Section 303(c) of the Clean Water Act (``Act''). As a result of the
nearly 10-year delay, and due to inadequate oversight by EPA, many of
Wyoming's surface water standards do not meet minimum Federal
requirements. For example, all of Wyoming's Class 4 waters (classified
for industrial, agriculture and wildlife watering uses) do not comply
with the Act because they are not supported by a Use Attainability
Analysis (UAA). EPA's regulations require a UAA for surface water
standards that do not support aquatic life or recreational uses.
Lack of An EPA Approved Antidegradation Policy. Although the
antidegradation provisions are a critical element of the Clean Water
Act, Wyoming's water quality standards still lack--27 years after the
passage of the Act--this mandatory provision. As a result, many of its
high quality ``tier 2'' waters have been unlawfully degraded by point
and non point source pollution. In some cases, single point source
discharges lacking proper effluent controls have consumed substantially
all of the water body's assimilative capacity.
Recent Legislative Enactments Block Attainment of Clean Water Goals
and Threaten Wyoming's Primacy to Administer Environmental Laws.
Earlier this year, the Wyoming State Legislature passed two laws that
directly conflict with Federal pollution control measures. Known as the
``credible data'' bill, Senate File 27 requires the use of credible
data--defined as ``scientifically valid chemical, physical and
biological monitoring data collected under an accepted sampling and
analysis plan, including quality control, quality assurance procedures
and available historical data''--to designate uses and to establish
water quality impairment. Because the law requires that designated uses
assigned by the DEQ be backed by credible data, it frustrates the water
quality ``enhancement'' goals of the Clean Water Act. Under the Act,
designated uses must reflect the potential water quality that could be
attained with proper pollution controls and best management practices.
The requirement that designated uses be based on water quality as it
exists today will not improve water quality. Moreover, because it
severely restricts the kind of data DEQ may use in determining
impairment, it prevents DEQ from considering such obvious forms of
water quality impairment as oil slicks, foul odors, floating scum and
fish kills. Among its other egregious flaws, Ron Micheli, the Director
of Wyoming's Department of Agriculture, boasted in the Department's
Spring 1999, newsletter that ``the approval of this legislation [SF 27]
will now send DEQ back to the drawing board on [the Triennial Review of
water quality standards].''
Second, concern surrounding the controversial Senate File 147-
Brownfields legislation has prompted EPA to undertake a review of
Wyoming's primacy under the Resource Conservation and Recovery Act
(RCRA). Among its many problems, this law substantially expands
exemptions to landowner liability, in conflict with strict liability
provisions of Federal law. In a March 4, 1999 letter to Wyoming
Governor Jim Geringer, EPA Region VIII Administrator William Yellowtail
noted that ``The Federal programs' provision of strict liability would
be negated by the proposed revision. Owners of property contaminated by
a previous owner, or by a contractor, or by any other party, would have
no obligation to clean up the property, no obligation to monitor or
investigate the contamination, and no obligation to comply with waste,
water, and air program monitoring requirements. This proposed provision
is unparalleled in Federal law and is inconsistent with authorized,
approved and delegated State programs.''
It is interesting to note that both laws were enacted over strong
objections from citizens, conservation organizations and the U.S.
Environmental Protection Agency.
Wyoming's Program for Reducing Non-Point Source Pollution Suffers
from Lack of Resources and Oversight. A 1997 audit prepared by the
EPA's Office of Inspector General revealed that Wyoming's Section 319
Program lacks adequate resources and sufficient oversight and technical
support by EPA. Despite citizens' efforts to compel enforcement of the
TMDL provisions of the Clean Water Act, Wyoming still refuses to take
meaningful efforts to address the leading cause of impairment of
Wyoming's rivers and creeks: siltation. Over 300 stream segments
identified on the State's 1996 303(d) list as impaired from siltation
were removed from the 1998 list and placed on a ``monitoring'' list.
The few TMDLs that have been developed lack daily load allocations and
many of the other basic elements of real TMDLs such as a margin of
safety.
Loss of Wetlands Continues at Unacceptable Rates. I believe that
the Clean Water Action Plan's goal of achieving a net gain of 100,000
acres of wetlands per year by 2005 is a laudable goal. However, unless
the Administration and the States start protecting more remaining
natural wetlands in addition to their efforts to restore degraded
wetlands, it will be expensive and extremely difficult to reach that
goal. Wyoming has already destroyed over 38 percent of its natural
wetlands since 1780 according to the US Fish and Wildlife Service.
According to Wyoming's 1996 and 1998 Section 305(b) water quality
assessments, 413 acres of wetlands were destroyed over a 4-year period.
Although this loss was partially offset by the addition of 339 acres of
constructed wetlands, the loss of values of naturally functioning
wetlands is significant. No program exists to monitor the effectiveness
of wetlands constructed as mitigation.
These 305(b) reports indicate that most losses occur under various
nationwide permits. A recently proposed general permit, Wyoming GP 98-
08, would have authorized the destruction of up to 2 acres of wetlands
and unlimited inundation of ephemeral drainages for each natural gas
well drilled in Wyoming. With as many as 15,000 new natural gas wells
proposed for construction in the next 10-15 years, wetland loss from
this general permit would have been unacceptable. To its credit, the
Corps of Engineers has responded to public comment and lowered to 1
acre the permissible loss per well and has proposed other strengthening
provisions.
Finally, we are concerned that wetland loss reported to the Corps
of Engineers may not accurately reflect actual losses. Many projects
proceed without authorization, while others result in destruction to
wetlands well beyond the scope of the permit. A recent example is the
canal constructed on the Wind River near Riverton, WY. There, the Corps
granted a permit to Fremont County (on behalf on the 1838 Rendezvous
Committee) to remove 30 cubic yards of material as part of a flood
control project. When the project was completed, an estimated 4,000
cubic yards of material had been removed to create what local officials
dubbed the ``Suez Canal.''
Lack of Resources Remains a Problem. Despite the addition of new
staff and an expanded budget, the lack of adequate technical and
financial resources within the Water Quality Division is still a factor
in the inadequate administration and enforcement of the State's clean
water program. It is generally acknowledged that additional monitoring
requirements imposed by Senate File 27 can not be met with existing
budget and staff levels. The problem could be alleviated by a permit
fee system, but recent legislative attempts to institute such a system
have proved unsuccessful. Wyoming citizens pay to fish, hunt, and
park--but polluters pay nothing to cover the administrative costs of
permits that give them the privilege of spilling millions of gallons of
waste into our surface and ground waters each year.
Access to Information Barred. Public access to water quality
related information is frustrated by unreasonable agency policies. In a
recent example, staff of the Powder River Basin Resource Council
requested from the Wyoming Department of Environmental Quality a copy
of a draft NPDES permit for produced water associated with coal bed
methane development in the Powder River Basin. They were advised that
in order to review the proposed permit, they would have to travel to
the DEQ's main office in Cheyenne, a 6 hour drive from Sheridan.
Although the information request was made in response to a legal notice
announcing the availability of the draft permit, the DEQ refused to
provide photocopies of the permit by mail.
State-Tribal Relations Suffer. Chronically poor relations between
the Northern Arapaho and Eastern Shoshone Tribes and the State of
Wyoming continue to undermine efforts to achieve the goals of the Clean
Water Act. For example, when Tribal representatives announced last year
their intent to develop water quality standards for surface waters
within the Wind River Reservation, Wyoming's then Attorney General
William Hill fired off a letter opposing their efforts. Despite the
well established authority to the contrary, the Attorney General
claimed--without citing any case law--``[a]s a matter of law, the
Tribes lack the authority to adopt such standards.''
In conclusion, let me just say that the Wyoming Outdoor Council and
many of Wyoming's citizens support the goals of the Clean Water Act and
efforts to achieve those goals, including the Clean Water Action Plan.
While it certainly won't fix all of Wyoming's problems, it has raised
public awareness of water quality issues in our State and has made
available significant new resources, both technical and monetary, for
watershed restoration and protection efforts.
I would also like to enter into the record, testimony from other
members of the Clean Water Network on various aspects of the Clean
Water Action Plan not addressed in my statement.
Mr. Chairman and members of the committee, thank you, again, for
the opportunity to be here today.
______
Responses by Dan Heilig to Additional Questions from Senator Chafee
Question 1. Mr. Heilig, you allege in your testimony that Wyoming
delisted 300 water bodies and was unwilling to conduct unified
watershed assessments out [of] fear that such listings and assessments
would lead to regulation. Are you saying Wyoming has sufficient data to
classify water bodies as impaired and refuses to do so, or that fear of
regulation is preventing Wyoming from adequately monitoring its waters.
Response. The Wyoming DEQ has ample evidence to support a finding
of impairment or threat of impairment on many of the 300 segments
removed for the 1996 Sec. 303(d) list. The information used to compile
the 1996 list came from a variety of sources including the Wyoming
Association of Conservation Districts (WACD), United States Geological
Survey (USGS), United States Fish and Wildlife Service (USERS), Wyoming
Game and Fish Department (WGFD), Wyoming Department of Environmental
Quality (DEQ), National Park Service, Bureau of Land Management (BLM)
and USDA Forest Service. There is little fear that monitoring may lead
to regulation since the recently enacted Senate bill 27 sets such a
high threshold (by requiring chemical, physical and biological
monitoring data) for documenting water quality impairment.
Question 2. Federal law requires the calculation of TMDLs, but
implementation is left to the States.
2a. Assuming that further monitoring confirms water body
impairments and TMDLs are calculated, do you foresee the State taking
action to meet the load and waste load allocations established by the
TMDLs?
Response. Wyoming DEQ has begun to calculate daily waste load
allocations for incorporation into NPDES permits. The State is much
more reluctant' however' to establish TMDLs for sediments, nutrients
other pollutants caused by non-point sources, preferring instead to
address this pervasive form of pollution through voluntary
implementation of best management practices.
Question 2b. Does Wyoming State law contain regulatory responses
that could be triggered by the calculation of TMDLs?
Response. Yes. Section 35-11-301 of the Wyoming Environmental
Quality Act (WEQA) prohibits the ``discharge of any pollution or wastes
into the waters of the State'' or ``alter[ation] of the physical,
chemical, radiological, biological or bacteriological properties of any
waters of the State'' without a permit, WEQA Section 302 directs the
DEQ to adopt rules, regulations, standards and permits that prescribe
among other things: water quality standards specifying the maximum
short-term and long-term concentrations of pollution, effluent
standards and limitations specifying the maximum amounts or
concentrations of pollution and wastes; and standards for the issuance
of permits under section 402 of the Clean Water Act. Thus, under the
WEQA, the Wyoming DEQ could establish and enforce TMDLs on any surface
water where technology-based effluent limits, alone, are not adequate
to implement any applicable water quality standard.
Question 3: As you stated in your testimony, a 1997 audit by EPA
indicated that the Agency was providing insufficient technical support
for the Wyoming section 319 program.
3a. Do you feel that the Action Plan remedies this problem?
Response. Although the Action Plan provides significant increases
in incremental section 319 funding to Wyoming, EPA's capacity to
oversee the State's use of the money has not kept pace. For example,
inadequate travel budgets and staff shortages prevent EPA from
maintaining a presence in Wyoming necessary to ensure appropriate
oversight and enforcement of the NPS program. The Action Plan does not
appear to directly address this problem.
Question 3b. With respect to the development of TMDLs, do you feel
that EPA is providing sufficient technical and financial support to the
States?
Response. In Wyoming we often hear the expression; ``You can lead a
horse to water but you can't make him drink.'' Although EPA has made
technical and financial resources available to Wyoming to support its
fledgling TMDL program, the Wyoming DEQ continues to question the need
for TMDLs by arguing that segments identifies as impaired in the 1996
Sec. 303(d) list were listed improperly, on the basis of inaccurate,
incomplete or erroneous information. We believe EPA must improve its
oversight of Wyoming's program, and resist approving TMDLs that lack
the basic statutory elements such as a margin of safety and maximum
daily loads.
______
Statement of Paul Schwartz, Programs Director for Clean Water Action
and Member of the Clean Water Network
Clean Water Action is pleased that the Administration with the
support of Congress is using the Clean Water Action Plan to begin a
long overdue process of coordinating and targeting limited funds in a
rationalized manner. The mere act of many Agencies and Departments and
Divisions sitting down together to coordinate overlapping or
disconnected programs and management values may lead in the end to
great cost savings and economies of scale. Also, we are pleased that
both Congress and the Administration are putting more dollars into some
of the most successful and best used programs to achieve improvements
in clean water such as CREP and EQUIP.
A number of issues, however, disturb us about the direction of the
plan:
Many necessary programs are severely underfunded. We
commend that Unified Watershed Assessments were ``done'' by all 50
States, 5 territories, DC and 18 tribes, but note that the overall
quality of these important plans is less than meets the eye. More
funding for actual on the ground monitoring and surveys, which includes
real public participation is needed. Also, application of GIS and the
best data sets available to the Assessments needs to be done more
uniformly and this will take more funding going out to the States.
Though the UAW targets and priorities restoration dollars, more dollars
need to be made available for restoration and antidegradation
activities. Polluted runoff has been identified as a huge clean water
priority, accounting for about 60 percent of the problems in assessed
waters, yet the $200 million in grants provided by EPA is but the
proverbial drop in the bucket compared to the money infrastructure
commands. Also, allowable funding of non-point and pollution prevention
problems by the States under their SRF programs are horribly
underutilized. The coastal runoff control program, one of the few
enforceable programs in our pollution fighting kit bags is also
underfunded. Finally, the CSO and SSO problems faced by our communities
around the country are not well address either in the current plan or
in the Administration's future request.
Given the overall clean and safe water funding ``gap''
using limited SRF funds as grants may be problematic--EPA has publicly
recognized that a huge funding gap exists for dealing with existing
clean and safe water needs. Some estimates put the combined funding gap
at well in excess of $200 billion over the next 20 years. The two State
SRF accounts will obligate some $200 billion over the next 20 years so
there needs to be a doubling of the rate of spending just to keep up
with current needs let alone plan for new regulations to address
problems that are looming on the horizon. Without expanded funding,
however, we oppose converting a full 20 percent of the State SRF into
grants, believing that will represent a fundamental weakening of the
integrity of the SRF accounts that are doing so much good. Instead, we
support full funding of the SRF accounts (especially a restoration of
the $500 million cut to the Clean Water SRF proposed by the
Administration), more Federal share and a polluters pay funding option.
Mechanisms to assure effective public participation in
setting funding priorities are lacking. Taxpayers and ratepayers are
not effectively at the table when funding priorities are being made
either at the Federal or State level. Public interest and citizen
groups are poorly represented if at all in stakeholder meeting and
public processes dealing with funding. Two good examples of this are
the effective ``barring'' of citizens from the States' CWSRF & DWSRF
Intended Use Plan (IUP) process. Big water utilities, favored elected
officials and municipalities, and engineering consultants dominate the
process and politics; drinking water consumers, recreational water
users, and those who make their living off the water get left out. With
all the Federal funds flowing into the SERF and PWSS accounts, States
should be required to set-aside a small amount of money to find and get
to the table ordinary people and their representative organizations.
This should be true for the upcoming ``Watershed Forums'' as well.
Performance criteria lack teeth--often giving way to bean-
counting substitutes--leaving us with the impression that some of the
dollars are unmandated funds that will go down the proverbial rathole
and are not accountable. Much of the work done under the banner of the
319 program has not resulted in real improvements in water quality.
Lack of an enforceable backstop is at the center of the problem. We do
not support programs that just throw money at the problem but expect
results for our tax dollars. Good baseline monitoring data along with a
strong TMDL program will crate the type of assessment and water quality
goal setting that may result in real improvements in getting to
fishable, swimable and drinkable waters.
______
Statement of Jacqueline Savitz, Executive Director, The Coast Alliance
and Member of the Clean Water Network
I would like to submit this testimony on the Clean Water Action
Plan to the committee on behalf of the Coast Alliance and the Clean
Water Network.
coastal runoff
With regard to Coastal Protection Issues, the Clean Water Action
Plan hones right in on the primary remaining source of water pollution,
polluted runoff, and reaffirms the Administration's commitment to
addressing runoff through existing programs. In our recent report,
Pointless Pollution, Coast Alliance discusses the plethora of problems
being caused on every coast, (and even in some non-coastal States) by
this diffuse but ubiquitous pollution problem.
Whether the source is agricultural runoff, sloppy forestry
practices or uncontrolled urban runoff, control over the continued
onslaught from polluted runoff is long overdue. Besides contributing to
the closure of nearly three million acres of the Nation's shellfish
beds, polluted runoff is also credited with degrading at least a third
of surveyed rivers and streams, and causing a ``Dead Zone'' covering
more than 6,000 square miles in the Gulf of Mexico. Polluted runoff
also promoted the toxic Pfiesteria outbreaks on the Mid-Atlantic Coast,
made swimmers sick on beaches in California, and clogged important
shipping channels in the Great Lakes and elsewhere.
The most common source of pollution, runoff comes from thousands of
diffuse sources, such as farms, logging areas, new and existing
developments, natural waters, marinas, septic systems, dams and other
sources. Together they create a serious and ubiquitous water pollution
problem.
The efforts described in the CWAP are not unpopular, they include
research, monitoring, education, partnering, and technical assistance.
In addition the Plan touts efforts to help States in a number of ways
that will address runoff. There is discussion of using existing
enforcement authorities to help States reduce pollutant discharges that
are contributing to harmful algae blooms. Support to States to
implement the Coastal Non-Point Pollution Control Program (of the
CZARA) is part of the program, and in the CWAP the administration
reiterates its commitment to this very important problem. Further, the
Plan commits to bring closure to the State planning process so that
States investments in planning can be brought to fruition.
These efforts to support and move forward with the Coastal Non-
Point Pollution Control Program are the least we must do if we are to
address beach contamination, Dead Zones, Harmful Algae Blooms,
sedimentation in ports and harbors, and other results of polluted
runoff gone awry. In truth, much stronger programs may be needed.
However, the Coastal Non-Point Program must be given a chance to work.
We need your help to secure funding for the States to make
solutions to these problems a reality. Historically, the Coastal Non-
Point Program has not been adequately funded. The States, that are
required to develop and implement these programs, need more financial
support from Congress. Last year Congress appropriated $8 million for
the program, one million of which is now in jeopardy of being
rescinded. This year, Congress has the opportunity to fold the Coastal
Non-Point Program into the Coastal Zone Management Act Reauthorization,
which would give it a home, and make it a stronger candidate for
limited Federal funding. Language to do this is currently included in a
House Bill, and will hopefully be included in a Senate Bill to
reauthorize the Coastal Zone Act as well. We look forward to working
with all of you on this issue.
contaminated sediments
Also in the spirit of cooperation, the Clean Water Action Plan
contains an action item on contaminated sediments. Contaminated
underwater muds exist in nearly every major watershed in the country.
They are major contributors to contaminated fish, which are also all
too common, and they create havoc when harbors require maintenance
dredging or deepening. Here the CWAP commits to funding five
demonstration projects to move forward on the State of the art for
decontaminating these materials. This is an important step. Additional
funding to clean up these underwater toxic sites as was sought by
Senator Levin in the past, is critical to insuring Americans have
access to clean safe seafood and fish.
We need your help to ensure funding is available for cleanups. We
also need your help to minimize the amount of sediments that are
dredged for harbor maintenance and deepening. One way to minimize this
is to minimize Federal subsidies for dredging. The House WRDA bill
calls for increased subsidies for deep dredging, the Senate version
does not. We need your help to ensure that the conference reverts to
the Senate language on this issue.
Thank you for considering my testimony.
______
Statement of Mary Wells, Policy Analyst, Earth Justice Legal Defense
Fund and Member of the Clean Water Network
The Clean Water Network applauds the Clean Water Action Plan's
commendable goal of a 100,000 acre net gain in wetlands by the year
2005. Natural wetlands are important filters of surface and ground
water, they help retain flood waters and provide habitat for birds and
wildlife. Unfortunately, the Administration has not demonstrated yet a
serious commitment to achieving their previous wetlands goal of ``no
net loss,'' let alone the new net gain goal. The most recent Draft
Report to Congress on Status and Trends of Wetlands by the U.S. Fish
and Wildlife Service found that from 1985 to 1995 an average of 117,000
acres of wetlands were lost each year. Despite this alarming figure,
the Administration continues to promote certain policies and projects
that destroy more wetlands than they protect.
Regarding policy, the Administration needs to replace the much
abused Nationwide Permit 26 with permits that truly cause only minimal
impacts and close any remaining loopholes in the program. In addition,
the Administration also should end the current widespread destruction
of wetlands due to the ``Tulloch rule'' court decision and act quickly
to clarify the definition of ``discharge of dredged material'' under
the ``Tulloch rule.'' Finally, the Administration should more carefully
scrutinize Federal projects which result in wetland destruction. For
example, three current projects in Mississippi--the Yazoo basin pumps,
the Big Sunflower dredging, and the St. John's Bayou project--together
could destroy up to 200,000 acres of wetlands. These expensive Federal
projects deserve an interagency review to limit the amount of wetland
destruction at the expense of Federal taxpayers. The Administration's
current policies and practices regarding wetlands must be changed for
the Clean Water Action Plan's goal of a 100,000-acre gain in wetlands
ever to be realized. In addition, Congress must fully fund the
restoration programs outlined in the Clean Water Action Plan if we are
to reach the laudable goal of achieving a net gain of wetlands in the
future.
______
Statement of Robbin Marks, Senior Policy Analyst for Natural Resources
Defense Council and Member of the Clean Water Network
These comments are submitted on behalf of the Natural Resources
Defense Council Inc., (NRDC), a national environmental organization
with more than 400,000 members residing in all 50 States. NRDC's
institutional purposes include the protection of water quality and NRDC
has long been active in efforts to reduce polluted runoff, control
point source discharges and promote sustainable agriculture.
the need for a comprehensive clean water act approach for factory farms
The Clean Water Act (CWA), enacted in 1972, works to help solve
water pollution problems that are national in scope. Pollution from
large scale animal confinement operations is a national problem,
affecting more than half of the States in the United States. Pollutants
gushing into waterways or wafting airborne do not stop at State
boundaries. Moreover, the current State specific approach has led to
patchwork of State livestock programs, some regulatory, some not; and
pollution shopping by industry to seek out the States with the weakest
controls.
As a key component of the President's Clean Water Action Plan, this
spring the U.S. Environmental Protection Agency (EPA) and the U.S.
Department of Agriculture (USDA) gave long-overdue recognition to the
problems of factory farm pollution in their ``Unified National Strategy
for Animal Feeding Operations'' (referred to here as the EPA-USDA
Strategy). In addition to embracing enhanced voluntary approaches for
the vast majority of livestock operations, the plan calls for the
implementation of a national Clean Water Act program.
the strategy implements existing clean water act authority
More than 20 years ago, the Clean Water Act identified feedlots as
point sources of pollution (and thus required to obtain National
Pollution Discharge Elimination System (NPDES) permits), but very
little has happened since then. Focusing its attention on more
traditional point sources of pollution, EPA all but ignored factory
farm pollution for decades. In 1992, the General Accounting Office
estimated that 6,600 livestock facilities were large enough to qualify
for Clean Water Act permits, but less than 2,000 of those facilities
had obtained permits.\1\ Today, EPA estimates that there are at least
10,000 large scale animal feeding facilities, and several thousand have
not obtained NPDES permits.
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\1\ U.S. General Accounting Office, Briefing Report to the
Committee on Agriculture, Nutrition and Forestry, U.S. Senate, Animal
Agriculture, Information on Waste Management and Water Quality Issues,
GAO/RCED 95-200BR, Washington, D.C. (1995), pp. 58-61.
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A national permitting system for large scale feedlots is not only
required by the Clean Water Act; it is also needed to create greater
consistency and protection across the Nation than is offered by the
current patchwork of State programs. As is currently the case under the
Clean Water Act, States would be free to adopt more environmentally
protective standards but could not sink below the ``floor'' of Federal
technology and permitting standards. While some States now issue
permits to feedlots under a variety of State laws, only Clean Water Act
permits provide the consistent environmental protection and procedural
rights needed to control pollution from confined animal feeding
operations (CAFOs): (1) Clean Water Act permits are designed to insure
that water quality standards are attained. State permits are not
necessarily based on this goal.\2\ (2) Under the Clean Water Act, if a
nearby water body becomes polluted by feedlots and other industrial
sources, EPA establishes pollution reduction goals for each
polluter.\3\ (3) Under the Clean Water Act, citizens have the right to
bring lawsuits against polluters to enforce the Clean Water Act.\4\
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\2\ Clean Water Act, Sections 101(a) and 402.
\3\ Clean Water Act, Section 303(d).
\4\ Clean Water Act, Section 505.
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epa has clean water act authority to regulate the land
application of manure
One of the best features of the EPA-USDA Strategy would require
CAFOs to protect soil and water from pollution through the land
application of too much manure. Recognition has been growing that
spreading vast quantities of manure on land can be as much of a
pollution threat as a leaking manure lagoon. EPA clearly has authority
under the Clean Water Act to regulate land application within a NPDES
permit. For example, Concerned Area Residents for the Environment v.
Southview Farm, 34 F.3d 114 (2d 1994), cert. denied, 115 S.Ct. 1973
(1995) \5\ held that manure spreaders are point sources. The Clean
Water Act, 33 U.S.C. Sec. 1362(14) holds that a point source includes
drainage tiles and ditches from which a pollutant flows.
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\5\ Concerned Area Residents for the Environment, et al. vs.
Southview Farm and Richard Popp, 834 F. Supp. 1410 (W.D.N.Y. 1993),
Defendant's Motion for Judgment as a Matter of Law, 834 F. Supp. 1422
(Cir. 2, 1993), (rev'd 34 F. 3d 114 (2d Cir. 1994) (reversing
defendant's motion)), cert. denied, 115 S. Ct. 1793 (1995).
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While the EPA-USDA Strategy clearly asserts that Clean Water Act
permits for CAFOs must include proper land application of manure, the
Strategy is unclear about what the specific requirements will be.
Additionally, it appears that CAFOs will have years to develop
Comprehensive Nutrient Management Plans (CNMPs) and several years
thereafter to implement them, so the benefits of these plans will not
occur for years to come. Finally, although the CNMPs are recommended as
core features of Clean Water Act permits, for facilities issued general
permits, the public is given no say on their terms. It appears that the
plans will only be available to the public after they have been
approved by USDA and EPA.
epa should not issue clean water act permits to any new and expanding
large scale confinement operations until standards are upgraded
The current Clean Water Act standards under which factory farms
operate are woefully inadequate. For example, the technology standards
allow factory farms to build football-field sized, open-air manure
cesspools. These manure lagoons have burst, leaked and overflowed--
polluting waterways across the country.
Under its new strategy, EPA is proposing to issue hundreds of
permits to new and expanding large scale animal confinement operations.
But these permits would be issued under the same antiquated technology
rules that have allowed many CAFOs to pollute.
EPA should impose a moratorium on permits for new and expanding
animal factories that currently qualify as CAFOs. This moratorium
should stand until EPA upgrades its standards regarding animal waste
technology, and until EPA tightens its rules to insure comprehensively
that all large scale animal confinement operations of all animal types
are required to obtain a permits. This time-out would also allow States
to assess the water quality effects of existing CAFOs before new
operations are built or existing operations are expanded. The wisdom of
a temporary time-out has been recognized by States all over the country
at one time or another, including North Carolina, Kentucky,
Mississippi, Missouri, Georgia and Oklahoma. Unfortunately, the EPA-
USDA Strategy does not include a moratorium.
local citizens should be allowed to participate fully in the decision
as to whether a factory farm is allowed to locate in their community.
and citizens should have the opportunity to help decide what pollution
controls are needed on factory farms to protect their communities. only
individual site-specific permits can accomplish this followed by strict
water quality monitoring by livestock operators and tough enforcement
against clean water act violators.
Despite the risk that CAFOs pose to water supplies and to public
health, citizens in most States do not have the right to be notified
before such a facility moves into their community. Once citizens are
faced with the prospect of a huge animal factory that will generate
more waste than several of their small towns put together, there is
rarely anything they can do to stop the facility from operating. And
once an animal factory has been established, there is little citizens
can do to ensure stricter pollution controls. The lack of citizen
participation in basic decisions about how to protect their communities
from huge potential polluters is a basic feature of the general permit,
which is the type of permit most commonly employed by States.
Rather than allow general permits for factory farms, the EPA should
require that all factory farms be subject to more stringent individual
permits. Individual permits require public notice before a factory farm
can be permitted, set site-specific permit terms and may require an on-
site evaluation prior to permit issuance. Site-specific permit terms
might, for example, require the siting of a manure storage facility in
the least ecologically vulnerable location on a property, despite the
owner's plans to put it elsewhere. An individual permitting system
might have prevented the location of a controversial factory farm
within close proximity to a wildlife refuge in Mississippi.
Unfortunately, the EPA-USDA Draft Strategy relies upon the use of
general permits for many CAFOs, especially for existing operations. The
strategy identifies a list of certain types of factory farms that
should receive individual permits, such as new and significantly
expanding operations and operations known to pollute or likely to
pollute. This is a good starting point but not enough. All factory
farms should receive individual permits. If a break or leak from a
manure storage facility occurs or manure is over applied on the land,
drinking water wells can become contaminated, fish can be killed and
public health can be threatened. The potential consequences are simply
too grave to authorize fast track permits for CAFOs of more than 1,000
animal units.
EPA has recognized the limitations of general permits in addressing
specific pollutant concerns in its call in the Strategy for watershed-
based permits, but especially in a watershed-based context, individual
permits make sense because they impose site-specific conditions.
Finally, Clean Water Act permits for factory farms must be backed
up with meaningful compliance. Most industries that are issued Clean
Water Act permits must monitor receiving waters and periodically report
the results to EPA. However, factory farms, which are not currently
required to follow these water-testing requirements, should be required
to follow them. A strict regimen of enforcement is needed, such as
periodic and unannounced inspections and penalties for violations that
will ensure compliance.
epa should ban the use of open-air manure cesspools for factory farms
and their spraying of manure and urine into the air. environmentally
friendly farming systems should be encouraged.
Factory farms generate so much manure and urine in one place that,
unlike livestock operations on a smaller scale, their manure storage
and land application practices are often more a matter of waste
disposal than of fertilizing crops. These systems have resulted in
enormous pollution problems. Recently, NRDC and the Clean Water Network
published a report entitled, America's Animal Factories: How States
Fail to Prevent Pollution from Livestock Waste. This report documented
pollution problems across America attributed to the lagoon and
sprayfield system including:
A North Carolina study of nearly 1,600 wells adjacent to
hog and poultry operations showed that 10 percent of the wells tested
were contaminated with nitrates above the drinking water standard, and
34 percent were contaminated with some level of nitrates.\6\
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\6\ Memorandum from Dr. Kenneth Rudo, toxicologist to Dr. Dennis
McBride, State Health Director, North Carolina Department of Health
(August 1998).
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In Indiana, animal feedlots were responsible for 2,391
spills of manure in 1997.\7\
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\7\ Kyle Niederpruem, ``Short Staffing Makes Policing Polluters
Harder,'' Indianapolis Star (April 21, 1998).
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Sixty three percent of Missouri's CAFOs (over 1,000 animal
units) handling wet manure that were inspected between 1990 to 1994 by
the State's Department of Natural Resources had illegally discharged
animal waste.\8\
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\8\ Missouri Department of Natural Resources, Press Release, DNR
Takes Action on Mega Farm Hog Waste Releases, Division of Environmental
Quality (October 20, 1995).
---------------------------------------------------------------------------
During the past 4 years in Iowa, there were 51 manure
spills into the State's streams, rivers and lakes that were serious
enough for financial penalties, resulting in more than 1.1 million fish
being killed. Overflowing manure storage lagoons were the source of the
biggest spills, while application of liquid manure onto fields caused
the most frequent spills.\9\
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\9\ Department of Natural Resources Database, Iowa Department of
Natural Resources, ``Prohibited Discharges at Iowa Livestock Operations
Resulting in Monetary Penalties and/or Restitution for Fish Kill Being
Proposed, Collected or Pending--1992 to Present'' (November 24, 1999).
---------------------------------------------------------------------------
Open air lagoons and aerial spraying by factory farms should be
banned. They should be replaced with technologies that do not rely upon
open air storage of vast quantities of liquid manure, or that store
manure in a drier form. Additionally, environmentally friendly and more
humane farming systems should be encouraged, including composting and
pasture systems. These systems, as well as an innovative system in
which hogs are raised on straw, have been proven to work in Europe and
in the United States. North Carolina passed legislation that required
the State Department of Agriculture to develop a plan to phase out
lagoons and sprayfields, but the Department's plan has failed to comply
with this mandate. The EPA-USDA Strategy barely mentions more
sustainable approaches. The strategy appears to support the continued
use of liquid manure systems in the short-term, and while alternative
approaches will be studied during the process of considering new
effluent guidelines, the Strategy does not commit to banning lagoons
and sprayfields in the long-term.
epa should ensure that the nation's waters are protected from poultry
manure. chicken factories should be regulated under the clean water act
in the same fashion as other animal operations
According to the U.S. General Accounting Office, close to 2,000
poultry operations were of sufficient size to warrant a permit in 1992,
but only 39 operations had them.\10\ The historic rationale that has
been used by EPA for exempting these operations was that poultry litter
is dry. Yet even dry manure, when applied in excess quantities to the
land, can create polluted runoff. Poultry factory farms should be
issued Clean Water Act permits, whether the manure generated is dry or
wet. In the initial round of permits under the EPA-USDA Strategy, it is
not clear whether all dry litter factory farms will be regulated in the
same fashion as other animal operations.
---------------------------------------------------------------------------
\10\ U.S. General Accounting Office, Briefing Report to the
Committee on Agriculture, Nutrition and Forestry, U.S. Senate, Animal
agriculture, Information on Waste Management and Water Quality Issues,
GAO/RCED 95-200BR, Washington, D.C. (1995), pp. 58-61.
---------------------------------------------------------------------------
there is a need to ensure that corporations that own livestock animals
share responsibility for paying the costs of waste disposal and cleanup
Large corporations often contract with smaller producers to raise
their chickens and swine but do not take responsibility for disposing
of the animals' waste. In many cases, farmers raising animals under
contract are forced to become polluters because the major food
corporations that own the animals will not provide enough acreage to
apply wastes properly. As a result, small contract growers are often
forced to over-apply manure to the fields that they have available. To
its credit, the EPA-USDA Strategy requires that the corporations that
exercise substantial control in the operations are co-permittees along
with the producers who raise the animals.
additional funding is needed, but it should not subsidize factory farms
To its credit, the Clean Water Action plan recommends additional
Clean Water Act funding. However, we strongly oppose the use of Section
319 funds, State revolving loan funds or Environmental Quality
Incentive Program funds to assist CAFOs with meeting the costs of
environmental compliance. By failing to address the true environmental
costs of their operations, CAFOs have been subsidized for decades.
These operations are well financed and have the resources to pay for
environmental improvements. Scarce public dollars should be directed
instead, to small and moderate sized animal feeding operations, and to
research and facilitate the transfer of sustainable livestock
practices.
______
Statement of Ross Wilson, Vice President, Texas Cattle Feeders
Association, on behalf of the National Cattlemen's Beef Association
Chairman Chafee, Mr. Baucus, members of the committee, good morning
and thank you for inviting The Texas Cattle Feeders Association (TCFA)
to be part of this hearing looking into the President's Clean Water
Action Plan. TCFA represents cattle feeders in Texas, Oklahoma and New
Mexico, an area that feeds 30 percent of the Nation's fed cattle. We
are a State Affiliate of the National Cattlemen's Beef Association
(NCBA). Mr. Chairman, I am Vice President of TCFA and serve on the
Clean Water Working Group for NCBA, which has been working closely with
EPA and USDA on all of the regulations and policies affecting the
cattle industry. We in the cattle industry appreciate this opportunity
to provide our insights on the Clean Water Action Plan and specifically
the USDA/EPA Unified Strategy for Animal Feeding Operations.
Cattle feeders and family ranchers, play an integral role in
protecting the environment. TCFA and many other NCBA State affiliates
have implemented proactive programs to protect the environment. Some
examples of TCFA's efforts include (1) 25 years of environmental
research with universities to determine proper land application rates
for manure and wastewater, groundwater quality testing and coring of
lagoons to document liner adequacy; (2) development of the
Environmental Quality Assurance Program to help feedyards comply with
regulatory requirements; (3) development of a model Pollution
Prevention Plan with Texas A&M University, which received a 1994
Environmental Excellence Award from EPA Region 6; and (4) a TCFA staff
engineer that works daily with our feedyard members.
Our industry is dependent upon the land and water and if we are to
pass this onto future generations it is crucial that both are kept in
excellent condition. However, not only is it important to protect the
environment but in order to be successful as producers and as a Country
we must maintain a strong livestock industry--so essential to the
Nation's economic stability, the viability of many rural communities,
and the sustainability of a healthful and high quality food supply for
the American people.
Mr. Chairman, our industry welcomes the opportunity to work with
EPA and USDA on determining the best solutions to any potential
problems that may exist. NCBA has worked closely with EPA to educate
them on the cattle industry. TCFA took the EPA officials rewriting the
effluent limitation guidelines on a tour of feedlots in Texas and
Oklahoma and NCBA has been assisting them throughout the country. We
welcome these opportunities because we want regulations and policy
written on well-founded facts and data.
The cattle feeding segment of the beef industry has been regulated
for more than 20 years. The Concentrated Animal Feeding Operations are
held to a ``zero-discharge'' standard. Thus, we are not allowed to
discharge into the waters of the United States, except in the 25-year
24-hour storm event. The implementation of this requirement has not
been totally consistent from State to State but nor has any other
aspect of the Clean Water Act. Forty-three States have been delegated
the authority to implement this program and have done so with great
success. Texas, Kansas and Nebraska account for nearly 70 percent of
all the beef cattle currently being fed. Each State has a required
State permit program for CAFOs adhering to Federal requirements, but
retain the right to impose more stringent standards if the appropriate
State authorities determine it is warranted. Each State has a manure
management plan requirement, as well as restrictions for the land
application of the natural organic fertilizer on land owned or
controlled by the CAFO. I mention these three States because they are
successful examples of Congress's intent when writing the Clean Water
Act, to give the States the autonomy and authority to protect the
waters of the United States.
The USDA/EPA Unified Strategy for Animal Feeding Operations has a
broad goal and extremely ambitious timetable to minimize water quality
and public impacts from Animal Feeding Operations (AFOs). We agree with
this goal and as the primary stewards of the land, we attempt to
accomplish this everyday. Unfortunately, due to some politically driven
messages, the average urban citizen has absolutely no idea about the
efforts and dollars already spent by cattlemen to protect the
environment. Citizens are inundated with data that is lacking in
completeness and/or is so dated it is no longer considered accurate.
The U.S. Geological Survey (USGS) in their 1993 scientific assessment
of nation water-quality trends stated that the National Water Quality
Inventory (State 305(b) reports) is so severely flawed and
scientifically invalid that it could not be used to summarize water
quality conditions and trends.
The Clean Water Action Plan makes enormous assumptions and
accusations based on this very data. It bases its conclusions on stream
data that represents only 19 percent of the rivers and streams in the
United States and only 40 percent of the lakes. Even with such a
limited amount of data, it appears that the Administration is able to
determine the source of all the pollution and is ready to go down a
regulatory path that will put numerous livestock producers out of
business and cost hundreds of millions if not billions of dollars. I do
not want you to think the cattle industry does not recognize in some
places there are areas of concern that need to be addressed. However,
we ask that when addressing those problem areas that EPA use sound
science, base their decisions on accurate and complete data, and
consider economic achievability and impacts in selecting technologies
and implementation schedules.
At this point I would like to address some general concerns we have
with the Unified Strategy for Animal Feeding Operations.
As the title states this is a Strategy for ``Animal'' feeding
operations and thus applies to all livestock. The problem with this
``one-size-fits-all'' approach is that the various livestock operations
are run with extremely different management practices. Pork, poultry
and cattle are produced differently from the beginning of the process
all the way to the end. As I am sure all of you know, the cattle
industry involves grazing operations and feeding operations of all
sizes. The Strategy fails to recognize these key management
differences. For example, the Strategy mentions storing dry manure in
production buildings or otherwise covering the manure from
precipitation. This may work for an indoor facility but anyone that has
seen a cattle feedlot would quickly recognize this is practically and
economically impossible, due to the numerous acres of the operation.
Indoor, covered storage has little or no environmental benefit when
runoff is collected and the site does not produce any leaching. But
even more importantly, from an environmental perspective, we believe
our industry is achieving the goals of the Clean Water Act without EPA
dictating every specific requirement.
Just like the Strategy is a ``one-size-fits-all'' or livestock the
same approach was taken when considering regional landscape and climate
differences. The Strategy fails to take into account the regional
climate, hydrological and topographic conditions of an operation. Mr.
Chairman, we have some cattle feedlots that are located 10 miles from
surface water and are located on a 300-foot deep ground water table,
while others may be 400 yards from a stream and over a shallow, 20-foot
ground water table. These two operations are clearly different in their
management practices due to the various risk factors, however in this
Strategy they are treated the same. This does not make any sense,
especially if the goal of the Strategy is to protect the surface waters
of the United States. The Strategy must recognize regional differences,
especially when some of the key factors in determining risk include
rainfall and soil type.
This leads into the next area of concern with the Unified Strategy
and that is the assumption that somehow the size of the operations
equates with the amount of environmental risk. As stated above, cattle
operations are located in a wide range of climates and landscapes. In
some cases a 2000 head feed yard may have a greater potential to harm
the environment than a 70,000 head feed yard. In reality, it all
depends on location, design and management practices. However, the
Strategy does not recognize this and basically states that no matter
where you are located nor how arid or moist of a climate you are in,
the key indicator as to the potential harm to the environment, is the
number of cattle in that feed lot. We do not interpret the Clean Water
Act to make determinations on size with no other considerations. States
need to be provided with statutes and regulations that have flexibility
so as to avoid these very rigid ``one-size-fits-all'' demands. We would
encourage EPA to take environmental risk into account when considering
who should be permitted and the type of design and management practices
needed, rather than arbitrary numbers.
The size of a cattle feedyard is also used when EPA determines if
an operator should have a general permit or individual permit. In Texas
we have been under a rigorous general permit that I think most would
say has been extremely successful. It covers all aspects of the
operations and in my eyes would be determined to be a ``functionally
equivalent'' (to use terms from the Strategy) NPDES program. However,
after many years of success Region 6 EPA has come back and said
exceptionally large operations may need to be placed under an
individual permit. This determination is made purely on size and does
not look at the potential risk to the environment based on site-
specific conditions.
Mr. Chairman, this is exactly what the Strategy is proposing, in
that no matter how successful you may have been under a general permit,
EPA's position is that due to your size you should have an individual
permit--no other considerations, just size. This once again seems to
defy logic when our goal is to protect the environment, not put overly
burdensome regulations on large operations based solely on an arbitrary
number.
On the other end of the spectrum is the discussion on watershed
permits for clusters of feedlots in an impaired watershed. EPA removed
from the Draft Strategy the portion stating that merely by your
location in an impaired watershed you would need a permit. However, the
final Strategy does call for watershed permits where CAFOs, smaller
than 1000 head, are located in a watershed that is impaired due to the
aggregate of these operations. It is our opinion that there needs to be
scientifically-based, site-specific determination that each one of the
AFOs in the watershed, that are required to get a permit, are proven to
be a source of the impairment. Otherwise this is merely an arbitrary
determination based on nothing but location. This is extremely
concerning when we know many States have determined waters to be
impaired purely on visual data and no scientific testing.
The Strategy calls for Comprehensive Nutrient Management Plans
(CNMPs) for all AFOs by 2009. USDA and EPA stated that there would be
flexibility as to what is included in a CNMP, however it is our
impression that all operators will have the same basic requirements.
One of those that is mentioned is feed management. While EPA has backed
off on dictating feed management, it is still included in the strategy
and there is a concern that down the road there will be mandatory feed
requirements in the permits. As many of you know, feeding practices
vary regionally and even seasonally and the goal is efficiency and
productivity. For example, in Idaho many of the lots feed potato by-
products and even feed french fries that are rejected from fast food
restaurants. These examples of variations in feed would make it
extremely difficult to regulate and should not be addressed under the
Clean Water Act.
A second area of great concern in the CNMP is the discussion on
land application of manure. This is an extremely important issue to the
cattlemen and deserves great attention. At the beginning of this
discussion land application of manure must be placed in two categories:
(1) land application on the land owned or operated by the CAFO operator
and (2) offsite land application. In Texas, the manure from feedlots is
sold to third party contract haulers who then sell to farmers the
product and service of applying the manure on their land. Texas permits
require record keeping which includes: name of the contract hauler,
amount of manure, and occasional nutrient testing. It is our concern
that EPA would propose to hold the CAFO operator liable for off-site
land application. To hold the operator liable for a product that has
been sold and taken miles away from the CAFO would not only be
extremely burdensome and costly, but may exceed the jurisdiction of the
Clean Water Act. Farmers purchase manure fertilizer to improve soil
condition and crop productivity. It would be cost prohibitive and in
some cases decrease crop productivity for them to apply excess manure
or commercial fertilizer.
As we interpret the Clean Water Act, the agriculture stormwater
exclusion and the flow return from irrigation place this in the non-
point source category and thus outside of the jurisdiction of the
Federal regulatory agencies. Mr. Chairman, we ask that EPA respect this
exclusion.
The Strategy states in the guidance section that for offsite land
application the owner operator would be required to do one or more of
the following:
Provide data on nutrient content to the off-site
recipient;
Record the recipients of the animal manure and wastewater
being transferred off-site;
Obtain a certification from the off-site recipient that it
has a CNMP.
The third option could potentially destroy the market for manure
because this would place liability and an enforcement mechanism on the
CAFO operator to make sure the farmer 10 miles down the road has a
CNMP. This also seems to only apply to the application of manure; thus
the farmer next door could over apply commercial fertilizer with no
regulatory limitations or repercussions. If EPA goes forward with this
idea and decides to regulate commercial fertilizer then the store or
plant that sells or manufactures the product would be liable, just as
the CAFO operator may be held liable for land application of manure.
Mr. Chairman this gets to the crux of the issue. The market for
manure versus commercial fertilizer is a very fragile and competitive
one and if EPA were to put regulatory restrictions on the land
application of manure we would see many farmers switch to commercial
fertilizer. This would be extremely detrimental to the CAFO operator
and to the farmer because he would no longer get the organic material
and other nutrients that make the use of manure so beneficial. This is
not an area to regulate without making careful considerations and
realizing the real world effects. We do not believe that EPA has
documented problems related to land application of manure fertilizer by
third-party farmers on land that is not associated with the CAFO.
As this committee looks to reauthorize the Clean Water Act it is
clear that the administration will push for EPA regulatory and
enforcement authority over non-point sources. One of the reasons for
this is so EPA can regulate land application of manure without any
jurisdictional impediment. EPA holds a tremendous amount of power in
this area with their ability to reject State plans and to make grant
determinations. We feel the States have done an excellent job handling
the non-point source pollution, with their limited resources. We
recognize there is still a long way to go. However, as compared to a
point source, end of the pipe pollution, this is a much more difficult
area to control and there has been limited economic resources put into
this program. The data, science and technology, that would allow us to
clearly identify the sources and magnitude of this pollution and the
most cost effective way of controlling it is still evolving.
Mr. Chairman and committee members, we would ask that you let
States remain in control of non-point sources and let the data evolve
before allowing EPA to place huge regulatory burdens upon non-point
sources.
As I stated at the beginning, the proposed Strategy is an extremely
aggressive plan with very stringent timetable. The Strategy states
there are 450,000 AFOs and EPA has set a goal of having every AFO with
a CNMP by 2009. This would require the help of NRCS, private technical
assistance and enormous economic resources. EPA would like to have the
CAFOs designated as priorities (15,000 to 20,000 CAFOs) with permits by
January of 2000. The models for these permits are to be finalized by
August 1999 leaving 3 months to issue 20,000 permits. It is these
unrealistic timetables that concern our industry. However, not only are
these ambitious timetables of concern but so is the lack of economic
resources we are seeing for technical support. The administration
proposed to cut its State Revolving Fund (SRF) funding and the EQIP
dollars have not been enough to cover the requests. To force AFOs and
all CAFOs to hire consulting engineers to meet unrealistic deadlines
adds to the economic hardship that exists today in our industry. This
proposal almost assures that only the largest operations will survive.
It seems illogical to propose an extremely cost intensive Strategy and
then reduce funding.
Mr. Chairman, the Strategy also outlines incentives for operators
to participate in the voluntary aspect of the program. The first
incentive allows AFOs, which were placed in the regulatory program
because of its location in an impaired waterway or because of a direct
discharge, to exit after 5 years, if the problems have been corrected.
This is not incentive because if the problems have been corrected the
operator would be allowed to exit under current law, absent any
incentive. The second incentive that allows the good faith operator a
pass on a one-time discharge is one we would hope exists in all the
programs EPA administers. Finally, the tax incentives are an excellent
idea and at some time one will be extremely useful. The only problem is
that many, if not most cattle producers are currently suffering
financial losses, and cannot utilize any type of tax incentive at this
time. We need to work together to put some real incentives in place
that will truly encourage operators to participate in the voluntary
program. Mr. Chairman, we would welcome the opportunity to sit down
with EPA and attempt to draft some real, tangible incentives for
producers.
Finally, Mr. Chairman, the cattle industry has a long history of
working with USDA and there has been a level of trust built between the
producers and the employees in the field. Secretary Glickman called for
a ``fire wall'' between the voluntary and regulatory program to protect
this relationship. While we appreciate the Secretary for his work in
trying to establish this firewall, the cattle producer would rather see
this placed in the statute to provide a statutory ``clear wall.''
Mr. Chairman, many environmental groups pushed for this Strategy.
They used terms like ``factory farming'' or ``corporate farming'' to
describe large operations that they feel are damaging the environment.
Senators on this committee have spoken in recent weeks on the floor,
asking for protection of the small farmer from the trend to consolidate
agriculture. Well Mr. Chairman, this Strategy may do just that. It will
force the small- to medium-size operations to expand or go out of
business because of increased compliance costs and put much more
pressure on larger operations to consolidate. On top of that, the issue
that we should be talking about is not size but environmental
protection. From an environmental protection perspective, the large
operators have been regulated, will continue to be regulated and have
the resources to protect the environment under current laws and
regulations. Mr. Chairman, members of this committee, we need to ask
ourselves and those individuals pushing this new Strategy: What is the
goal?
Mr. Chairman, members of the committee, let me reiterate the
cattlemen's position. Our industry plays a crucial role in protecting
the environment. Our livelihood depends upon the quality of the land
and water. EPA has been regulating our industry for over 25 years. EPA
admits that the current regulations have not been fully implemented and
in some States the regulations have lagged behind others. However, EPA
must also recognize many States are doing an excellent job and are
going beyond what EPA requires under its regulations. With that in
mind, we would recommend that EPA focus on the States that have not
implemented the existing programs before implementing an entirely new
Strategy which will place costly and unnecessary regulatory burdens on
many producers.
This concludes my testimony. The Texas Cattle Feeders Association
wishes to thank Chairman Chafee, members of the committee and
specifically Senator Hutchison for this opportunity to testify. I would
be happy to answer any questions you or other members of the committee
may have.
National Cattlemen's Beef Association
January 19, 1999.
Denise C. Coleman,
Program Analyst,
Natural Resources Conservation Service,
Washington, D.C. 20013-2890.
RE: Comment on the Unified National Strategy for Animal Feeding
Operations
The National Cattlemen's Beef Association (NCBA) appreciates the
opportunity to comment on the Draft Unified National Strategy for
Animal Feeding Operations, published on September 21, 1998 (63 Fed.
Reg. 50192) hereinafter referred to as the ``Strategy.'' NCBA
represents the many cattle feeders and family ranchers, all of who have
a stake in protecting the environment. But we must also weigh these
protections against maintaining a strong livestock industry--so
essential to the nation's economic stability, the viability of many
rural communities, and the sustainability of a healthful and high
quality food supply for the American public. We believe that common
sense, cost effective and affordable principles can be applied to
livestock production to achieve water quality protection.
Initiated in 1898, NCBA is the marketing organization and trade
association for America's one million cattle farmers and ranchers. With
offices in Denver, Chicago and Washington, D.C., NCBA is a consumer-
focused, producer-directed organization representing the largest
segment of the nation's food and fiber industry. As representatives of
family farmers and ranchers with a vested interest in protecting the
environment, we are pleased to provide the following comments.
overview comments
The Strategy sets out the joint USDA/EPA plans for dealing with so-
called ``polluted runoff'' from animal feeding operations (AFOs) and
the land application of animal manure and wastewater. The Strategy
calls for the implementation of comprehensive nutrient management plans
(CNMPs) by operators of cattle, dairy, hog and poultry facilities to
minimize adverse environmental impacts. The Strategy also acknowledges
several regulatory and enforcement initiatives now underway at EPA, and
describes the relationship between voluntary and regulatory programs.
The Strategy's broad goal is to minimize water quality and public
impacts from AFOs. NCBA agrees with this goal and recognizes that
cattlemen, as one of the primary stewards of many of our nation's
natural resources, have been successfully striving to accomplish this
goal for numerous years. However, it is extremely difficult for the
average citizen to see that effort when confronted with unsupported
claims of non-point source pollution from animal agriculture. The data
supporting those claims are lacking in completeness and/or are so dated
they are no longer considered accurate. The U.S. Geological Survey
(USGS) in their 1993 scientific assessment of national water-quality
trends stated that the National Water Quality Inventory (State 305(b)
reports) is so severely flawed and scientifically invalid that it could
not be used to summarize water quality conditions and trends. NCBA
depends on sound scientific and statistical data when analyzing the
methods in minimizing water quality impacts. Before we require large
economic investments by animal feeding operations into minimizing water
quality impacts, we feel accurate data must be collected and analyzed
to truly determine to what extent an impact exists and will the
proposed solutions cure this possible impact. Collecting and updating
this data should be the initial goal of any strategy affecting the
waters of the United States.
The Strategy is focused on the livestock industry as a whole.
However, due to the maturity in the industry, the various species of
livestock are being produced with extremely different management
practices. For example, the pork and poultry operations are produced in
almost entirely enclosed facilities. The cattle industry involves both
grazing operations that can span over hundreds of acres and feed lots
that are in open, outdoor penned facilities. The Strategy does not
acknowledge these management differences. For example, the Strategy
mentions storing dry manure in production buildings or otherwise
covering the manure from precipitation. That may work for a pork or
poultry operation, which is already indoors, however a great majority
of the beef feedlots store manure in the cattle pens prior to being
hauled out and land applied. Thus, covering the dry manure would
involve placing roofs over the entire feedlot. This is economically and
practically infeasible. It is very difficult to apply a broad-based
Strategy to the entire livestock industry without some appreciation of
the many different management practices. NCBA suggests a need to
recognize in the Strategy the different management practices of the
livestock species.
Just like species are managed in a different manner, so are
operations in the various regions. USDA and EPA must always take into
consideration the regional climate, hydrological and topographic
conditions of an operation. As I am sure you are aware, some cattle
feedlots are on land that may be many miles from surface water and
located over a 150-foot deep ground water table, while others may be
200 yards from a stream and over a shallow, 20-foot deep ground water
table. These two operations are clearly different in their management
practices due to the various risk factors and potential management
strategy differences. A national Strategy addressing water quality
issues must acknowledge these regional differences.
The Clean Water Act states that CAFOs are point sources and defines
what a CAFO is in the regulations at 40 C.F.R. 122.23. Through the
Strategy, it appears that EPA expands the definition of CAFOs to
include operations that under the regulations are considered AFOs. We
feel EPA should follow the Administrative Procedures Act and do a
rulemaking, open for public comment, prior to changing these
definitions.
Finally, the Strategy makes various predictions on the number of
feed lots that will be placed in the regulatory program versus
participating in a voluntary program. These predictions were made with
the current definition of AFO and CAFO. However, as I am sure you are
aware, EPA is rewriting the Effluent Limitations Guidelines (ELG) for
livestock and in that process looking at the definition for CAFOs. If
this definition were to change, there would be a dramatic effect on the
predictions of voluntary versus regulatory participants of this
national Strategy. The current regulatory definition of a CAFO should
remain the same for beef cattle and NCBA is conveying this point to the
EPA officials rewriting the ELG. NCBA is extremely concerned that
grazing, cow-calf, and temporary winter operations could be pulled into
the CAFO designation if it were to change. The EPA officials working on
the ELG will see that these operations do not pose a risk to the
environment and it would be economically infeasible to regulate these
operations. The definition of CAFO should be addressed in the ELG
process and not this Strategy.
comprehensive nutrient management plans
The Strategy establishes a performance expectation that all AFOs
nationwide should develop and implement technically sound, economically
feasible, and site specific Comprehensive Nutrient Management Plans by
2008, which should address, at a minimum, feed management, manure
handling and storage, land application of manure, land management,
record keeping, risks from pathogens and other pollutants, and include
a schedule for implementing the management practices identified. The
National Resources Conservation Service (NRCS) Field Office Technical
Guide will be the primary technical reference for the development of
CNMPs for AFOs, and technical assistance will be provided through Soil
& Water Conservation Districts (SWCDs), Cooperative Extension Service,
USDA Service Centers and the private sector. NCBA believes some form of
plan is needed for any operation, however the plan needs to be
productive and address those operations specific issues. Operators that
are in different regions or vary in size could and should have
substantially different plans. Currently many operators have a
Pollution Prevention Plan in place that covers many if not more issues
discussed in the CNMP. NCBA would urge EPA and USDA to work to
incorporate these plans to avoid any duplication.
The Strategy discusses the need for feed management. NCBA believes
that feed should be managed by each operator due to the various
economic and nutritional issues involved with feeding cattle. We are
clearly aware of the phosphorus and nitrogen balance, however there are
other issues when it comes to feed such as production and costs. To
require operators to manage their feed through a permit would be
extremely onerous and perhaps greatly hinder their profitability. NCBA
suggests that feed management should not be a requirement of a CNMP,
especially with the lack of research that has been done on this issue
from an environmental perspective.
A major portion of the CNMP focuses on manure storage, handling and
application to land. As addressed above, this is an issue that species
and regional differences must be considered. It would be very difficult
and not very effective to outline specific storage and handling aspects
to be included in a CNMP without considering the vast regional
differences in land and proximity to water. The Strategy fails to
discuss the differences between manure applied on land owned by the
feeding operation versus manure sold, traded or given away to be
applied on land not owned by the feedlot.
NCBA is very concerned that this Strategy attempts to expand the
legal authority of EPA to regulate the proper land application of all
manure through CNMPs and/or NPDES permits. We do not agree with EPA's
position that stormwater runoff from fields on which animal wastes have
been properly applied should lose the stormwater exemption in the
absence of a certified CNMP and be defined as a point source of
pollution. We are concerned that attempts to strictly link offsite land
application practices of third parties to a CAFO operators' NPDES
permit will destroy the current markets for manure as a farmland
fertilizer. Today farmers and others often purchase manure and spread
it on their crops as an important source of nutrients. Their
willingness to do so will likely change if excessive record keeping and
restrictions are placed on their actions. We are very concerned with
the fact that if land application were pulled into the NPDES permitting
system we would see a massive increase in citizen suits, many of which
would be frivolous and costly. These types of legal actions do nothing
to protect the environment but can very easily force an operator to
close.
It is clear that AFO owners and operators will need substantially
increased access to technical and financial assistance to meet the
performance expectations of the Strategy. Since perhaps 300,000 new or
revised CNMPs will be required, the Strategy recognizes that
availability of private and public sector specialists to assist will
potentially limit the successful completion of the Strategy. We urge
the agencies to strongly support this need with the programs described
in Section 5.0, Strategic Issue #1, and with additional Federal budget
initiatives to ensure success. We especially support the suggestions
that USDA develop agreements with third-party vendors similar to the
1998 agreement with the Certified Crop Advisors (CCAs), and both EPA
and USDA to place on their websites computer expert systems for use by
producers in development of CNMPs. We also suggest that the agencies
support the educational efforts of NCBA and other industry
organizations.
voluntary programs
For the majority of AFOs (estimated to be about 95 percent of all
farms), the Strategy suggests that voluntary efforts will be the
principal approach used by the agencies for CNMP implementation. NCBA
believes this number will be substantially different should the
definition of CAFO change during the ELG process and this needs to be
mentioned in order to avoid misleading producers. The Strategy also
suggests that CNMPs developed and implemented through voluntary action
by operators may be less comprehensive and implemented over longer time
periods than CNMPs required for compliance with a regulatory program.
This sounds reasonable, but we also urge the agencies to factor in the
regional climatic, hydrologic, and topographic differences that exist.
The Strategy indicates that AFO owners and operators participating
in voluntary programs must agree to develop and implement a CNMP before
receiving financial assistance. We can understand why the agencies
would want to apply this restriction to funds targeted to animal
feeding operations, but we strongly hope that the agencies do not
intend to apply this restriction to all Federal financial assistance
potentially received by a farm raising both crops and animals. This
needs to be kept a voluntary program and not turned into a regulatory
program with financial assistance being the catch.
NCBA recommends increasing the range and magnitude of the
incentives to participate in the voluntary program. EPA and USDA need
to meet with the stakeholders to-discuss what incentives could be
placed on this voluntary program that would entice operators to
participate while giving them the reassurance that this is not a pseudo
regulatory program.
regulatory program
The Strategy estimates that only 5 percent of the total number of
AFOs will be in mandatory programs, under the proposed Strategy this
will likely include all CAFOs. NCBA questions the accuracy of this
percentage and the statement that only 2,000 CAFOs have NPDES permits.
Does this include CAFOs that have state permits equal to or exceeding
NPDES permit requirements? Does this include each individual general
permit?
The Clean Water regulatory program is going through a dramatic
change with the rewrite of the ANPRM for water quality standards and
effluent limitation guidelines for livestock; NCBA would encourage the
USDA/EPA to acknowledge these changes in the Strategy.
The Strategy calls for an increase in the number of permits issued
to CAFOs. The Strategy proposes to inspect all priority CAFOs within 3
years and all CAFOs within 5 years. In addition, it seeks to
``significantly expand'' permitting by targeting the largest CAFOs by
2003 and all others by 2005. Not only are these extremely lofty goals,
but we seriously question whether the Federal agencies and the states
have sufficient financial and personnel resources to accomplish these
goals. Currently, many states have been delegated the permit authority
and are struggling with the limited state budgets. Clearly, the
agriculture industry does not have the resources to accomplish such
demands. We would ask EPA and USDA to reconsider their lofty goals in
light of the economics or to clearly outline the source of increased
continual funding to accomplish these goals.
The Strategy implies that the current regulatory program is not
working and thus this new Strategy is needed. EPA acknowledges that the
current regulatory program has not been fully implemented. NCBA would
encourage EPA to implement existing programs and evaluating their
success or failure before initiating an entirely new program or
Strategy.
The Strategy states that ``large facilities (those greater than
1000 animal units) produce quantities of manure that are a risk to
water quality and public health whether the facilities are well managed
or not. `` NCBA takes issue with this extremely broad accusation and we
would ask that such an accusation be backed up the sound scientific
evidence. This statement disregards the need for science and fact-based
decisionmaking, in favor of an arbitrary analysis. NCBA is concerned
with such accusations, not only because it accuses a well managed
feedlot of impacting water quality purely based on its size, but also
such broad, unproven statements can cause great public concern.
The Strategy states that animal feeding operations that remove
manure from feedlot pens and stack it in areas exposed to rainfall or
near an adjacent watercourse have established a crude liquid manure
system for process wastewater that may discharge pollutants, and
therefore would be subject to the CAFO regulations. These facilities
are then point sources under the NPDES program if the number of animals
confined at the facility meets the regulatory definition at 40 CFR Part
122. Appendix B. or if the facility is designated as a CAFO after an
onsite inspection. Although many cattle feedlots far exceed 1000 animal
units in size and generally operate under NPDES permits, NCBA is
concerned that EPA not prevent temporary in-field manure stacking. This
is a common practice necessitated by the large quantities generated
whenever the feedlot pens are cleaned. In the weeks that follow,
manageable-sized quantities are withdrawn for land application from
these stacks.
The Strategy also suggests that the finding that an operation
generates more dry manure than it has land to spread it on could also
trigger a permit requirement. NCBA is concerned that EPA not apply this
consideration to AFOs which sell or give away the manure produced on
their facilities. In many cases, cattle feeders own little if any crop
land for spreading manure.
The Strategy discusses the denial of the agricultural stormwater
exemption for land application. Case law has established circumstances
under which the CWA's agricultural stormwater exemption can be denied
for land application of manure. The exemption is intended to exempt
fertilization of crops and pastures and the courts have held that it
does not apply if manure is over-applied (e.g., Concerned Area
Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.
1994), cert. denied 115 S. Ct. 1793 (1995)). However, over application
cannot be subjectively evaluated. NCBA believes that EPA exceeds its
authority to deny the agricultural stormwater exemption for all runoff
associated with the land disposal of manure originating from a CAFO, or
from AFOs for which the land application occurred without a CNMP
developed by a public official or a certified private party or in a
manner inconsistent with the CNMP.
smaller cafos exit regulatory program
NCBA would like EPA/USDA to clarify their requirements for smaller
CAFOs to exit the regulatory program. NCBA interprets this section to
describe a smaller CAFO (less than 1000 animal units) that was
originally regulated due to the fact that it was discharging into
navigable waters through a manmade ditch; pollutants are discharged
directly into waters of the U.S. which originate outside of and come
into direct contact with the animals; or is considered a significant
contributor of pollution to the waters of the U.S. If the reason for
the CAFO designation no longer exists than under current regulations
that operation would be an AFO and not subject to the regulatory
program. The Strategy states the operation ``must'' fully implement a
CAMP to exit the program. If the permit expires and the reason for the
CAFO designation no longer exists then it is NCBA's conclusion that EPA
would no longer have jurisdiction to require them to have a CNMP.
NCBA agrees that incentives are needed for development of CNMPs by
AFOs, but it is not enough to simply promise the opportunity to exit an
enforceable permit program in 5 years. There needs to be a true
incentive for AFOs, one that includes those AFOs that do not discharge
or are not permitted due to the storm exemption. Also, these incentives
should not be strictly tied to the size of the feed lot. A large AFO in
a very arid region may be less of a risk than that same size feed lot
in a high rainfall region. Risk factors are a very important
consideration and the limiting factor should not be based solely on
size.
good faith incentive
The Strategy acknowledges that existing provisions of the CWA and
related EPA regulations provide authority for including a significant
number of AFOs in the permit program beyond those that now have
permits. This will mean that many smaller AFOs will be regulated as
CAFOs. NCBA concurs with the EPA/USDA's conclusion that many AFOs are
currently taking voluntary action in good faith to manage manure and
wastewater in accordance with a nutrient management plan. NCBA supports
the incentive that small AFOs that have a discharge will be offered an
opportunity to address the cause of the discharge before the agency
considers their designation as a CAFO.
NCBA believes that the good faith incentives offered small AFOs
should be provided to all operations. Thus, all operations should be
offered an opportunity to address management problems or the cause of
any discharge before the agency considers their designation as a CAFO.
strategic issues
Strategic Issue #1. The development and certification of CNMPs will
be a very important and time-consuming process. NCBA would encourage
USDA/EPA to examine programs that would put NRCS and feedlot operators
together to serve as partners in certifying programs. This would
provide the technical knowledge of NRCS with the practical knowledge of
operators. NCBA feels that the feedlot operators, state and national
associations need to play a role in this certification process along
with USDA/NRCS.
We are concerned the Strategy has adopted nutrient management
planning goals that are entirely inconsistent with the private sector
technical assistance delivery system's ability to support the planning
effort. It is impossible for the combined efforts of the existing and
anticipated public and private sector delivery system to prepare good
quality, effective nutrient management plans for more than 300,000
operations by 2008. The Strategy must be changed in this regard, and we
stand ready to work with you to identify voluntary nutrient management
planning goals or develop a process that will accelerate training and
education efforts that are truly consistent with the public-private
delivery system's anticipated capacity to provide quality technical
assistance.
If EPA and USDA ignore the fact that they have overestimated the
technical assistance delivery system's ability to meet this demand,
inadequate or poor quality plans will be prepared, and the credibility
of the newly created private system will be greatly injured. As noted
in the Strategy, there is an extensive and growing network of more than
12,000 private and certified crop advisors and crop consultants who
provide technical assistance services today. There is no question that
this private component of the technical assistance delivery system will
only grow in future importance to the country's efforts to support
conservation activities in agriculture. But the future of the private
sector system will be jeopardized if it is asked to handle the workload
and timeframe laid out in the Strategy.
Strategic Issue #2. USDA, EPA and the various stakeholders need to
expand the voluntary incentives provided in this Strategy. NCBA agrees
that the individual owners and operators have a duty to control the
potential release of pollutants. However, NCBA does not think EPA has
the authority to regulate ``companies and industries'' feed lot
operators are involved with, in order to minimize the release of
pollutants. Feed lot operators should not be the legal connection to
regulate or place voluntary pressure on industries or businesses
otherwise not regulated under the Clean Water Act.
NCBA looks forward to developing voluntary programs and working
closely with USDA and EPA to establish incentive programs. These ideas
and programs will demand adequate and long-term financial incentives
that apply equally to feed lot operators. NCBA does not feel existing
programs will suffice in accomplishing the lofty goals of developing
and implementing CNMPs for all AFOs by 2008. Flexibility will be needed
in determining who is certified to develop CNMPs. Thus, NCBA welcomes
working with USDA and EPA in developing new programs.
Strategic Issue #3. Starting in the spring of 1999 in Round I of a
two phased permitting program, EPA proposes to work with NPDES-
authorized States to use Best Professional Judgment (BPJ) to issue
Statewide general NPDES permits to cover all CAFOs with greater than
1000 animal units (A.U.s) and CAFOs with between 300 and 1000 A.U.s
that have unacceptable conditions. This is consistent with existing
Region 6 general permit policy. However, the Strategy also proposes
that individual NPDES permits be issued for exceptionally large
facilities, new or expanding operations or operations with a history of
discharges. No definition of ``exceptionally large'' was given. NCBA
strongly disagrees with this arbitrary discrimination, for a large part
of the cattle feeding industry has successfully operated for many years
under general permits. Roughly 33 percent of the U.S. cattle feeding
industry is located in EPA's Region 6, and the general permits have
worked well. Now is not the time to undertake the expense and lost time
needed to develop and approve individual permits for existing ``large''
facilities. We urge EPA to rethink this part of the plan.
Similarly, in Round I, EPA proposes to work with States to develop
watershed general permits for selected watersheds not meeting clean
water goals due to aggregate water quality impacts from AFOs on a
watershed scale. The draft Strategy suggests that EPA may regulate AFOs
that, as a group, may cause or contribute to watershed impairment.
Under this scenario, an AFO making even minor pollutant contributions
could be regulated if it is located in a watershed impaired from the
cumulative impacts of many sources. NCBA is troubled by this proposed
action. Current EPA regulations only give the Agency the authority to
regulate AFOs as CAFOs if three specific conditions are met: (1) the
AFO is individually a significant contributor of pollution to waters of
the U.S.; (2) the AFO discharges through a manmade system, and (3) the
waters into which the pollutants are discharged originate outside of
the facility. Furthermore, a determination that these conditions are
met must be made on a site-specific basis through an onsite inspection.
NCBA believes that EPA lacks the authority to convert such a case-by-
case consideration of individual AFOs to one based on cumulative
impacts of numerous AFOs and CAFOs on the watershed. NCBA would request
EPA to define what it considers to be a significant contributor.
In Round II of the two phased permitting program (about 2005), EPA
proposes to incorporate newly developed effluent limitations guidelines
(ELG) and nutrient criteria into NPDES permits. ELG development is
underway now, and NCBA is working to facilitate EPA's understanding of
the industry, collection of data, visits to representative facilities.
EPA expects that revisions to the effluent guidelines will, among other
things, evaluate options for regulating dry manure handling systems and
be closely coordinated with any changes to the NPDES permitting
regulations. NCBA is concerned that attempts to strictly link offsite
land application practices of third parties to beef feedlot operators'
NPDES permits will destroy the market for dry manure. Today farmers and
others purchase manure and spread it on their crops as an important
nutrient alternative to commercial fertilizer. Their willingness to do
so will change if excessive record keeping and restrictions are placed
on their actions. NCBA is concerned with the fact that if land
application were pulled into the NPDES permitting system we would see
an abusive use of citizen suits, many of which would be frivolous and
costly.
EPA will revise the NPDES permit program regulations regarding
CAFOs: The Strategy states that by 2001, EPA intends to revise existing
permitting regulations to clarify expectations and requirements for
CAFOs as well as to reflect the changes in the industry. EPA also
intends for the new livestock ELGs to be wholly consistent with these
permit regulations. NCBA is working closely with EPA in the new
livestock ELGs. Some of the key permitting issues that EPA intends to
consider during this process are cause for concern by NCBA. They
include:
(a). requirements for effective management of manure and wastewater
from CAFOs whether they are handled onsite or offsite. NCBA urges EPA
and USDA to cooperate with states to find nonregulatory methods to
encourage the proper offsite management of manure. Corporate producers
cannot be directly responsible for the actions of third-party manure
applicators;
(b). exploring alternative ways of defining CAFOs, including
reducing the animal thresholds involved. NCBA asks EPA to carefully
consider numerous factors when analyzing the definition of CAFOs. The
size of a feedlot is not the sole risk factor and thus should not be
the sole determining factor in placing an operation in a regulatory
program. The current definition is successful in separating feeding
operations from grazing operations and this is important. To accomplish
this, 40 CFR 122.23(b)(ii) that discusses the lack of crops, vegetation
forage growth or post-harvest residues as a condition for CAFOs, must
remain part of this definition. This is an area that species
differentiation must also come into consideration. The economic burden
the regulatory program places on the small operator is immense and
would have a damaging effect on the cattle industry if all the factors
above were not carefully considered. As stated above, this definition
determination should be left to those rewriting of the ELG.
(c) providing for expedited designation of smaller AFOs in
watersheds identified for watershed general permits. NCBA reminds EPA
that designation of smaller AFOs as CAFOs must occur on an individual
basis, following onsite evaluation of potential adverse environmental
effects. Many operations located in watersheds identified for watershed
general permits will not be contributing to the problem, and any onsite
evaluation will likely reveal this.
(d) removing the exemption from permitting for AFOs that only
discharge during a 25-yr, 24-hr storm. The agencies assume in the
Strategy that all CAFOs will discharge sometime, regardless of their
design and skill of management. Thus they wish that all CAFOs (by
definition or designation) be required to operate under an NPDES
permit. They argue that the permit provides a shield in the event a
rare 25-year, 24-hour storm occurs. Current law provides the incentive
for operations to construct facilities of sufficient capacity and in
geographic locations which make a discharge highly unlikely. NCBA is
concerned that EPA not remove the 25-year, 24-hour storm design
criteria or known as the ``Acts of God'' safety net.
Strategic Issue #4. The Strategy calls for a coordinated research,
technical innovation, compliance assistance, and technology transfer
relative to the environmental management of AFOs. USDA and EPA,
together with other Federal partners, will establish coordinated
research, technical innovation, and technology transfer activities, and
compliance assistance, and establish a single point information center.
NCBA fully supports this coordinated effort by USDA and EPA. Many times
the problem with research is not the lack of, but the inability to
locate the information. This will not only be helpful to the industry
but to the various government agencies that are seeking information.
However, there must be full cooperation from all parties, otherwise the
gaps are merely smaller in size.
Strategic Issue #5. The cattle industry has been a leader in the
livestock industry for over a century. We have been stewards of the
land prior to the development of most other industries and regulatory
bodies. This Strategy needs to reflect that history if it is going to
be a representation of the livestock industries past and future. NCBA
has long history of working closely with state and Federal Government
officials. . Currently, NCBA is helping EPA with the ELG guidelines and
will continue to provide them with information and data. Other
livestock species have entered into a ``Dialogue'' for a host of
reasons that are not present in the cattle industry. NCBA has been and
will continue to participate in the process and welcomes the leadership
role. Our members pride themselves as stewards of the land and have
pioneered much of the voluntary environmental practices that exist
today.
Strategic Issue #6. The USDA has a long history of collecting data,
providing technical support, and establishing voluntary programs with
the livestock industry. This government/industry relationship depends
on a high level of trust. In order for the voluntary programs, outlined
in this Strategy, to be successful some form of ``firewall'' between
the voluntary and regulatory programs must exist.
Strategic Issue #7. The Strategy outlines performance measures to
gauge the success in implementing this Strategy. NCBA would welcome the
opportunity to work with USDA and EPA in determining those performance
measures. NCBA feels the cattle industry has a history of environmental
stewardship and should be involved with determining the performance
measures for the cattle industry.
roles
The Strategy calls for the involvement of a number of groups and
individuals to play key roles in order to successfully carry out this
Strategy. NCBA agrees with this statement, however we are concerned
with some language in this section because in many cases it does not
separate voluntary and regulatory roles. The line between the voluntary
or regulatory program needs to be very clear. NCBA is very concerned
with the section on environmental groups where it states:
``Environmental groups can provide ``onsite'' reports about specific
environmental quality concerns and can educate its members, the general
public, the agricultural community and the media. . . . `` The Clean
Water Act does not grant jurisdiction to environmental groups to do any
type of onsite reporting on private property owner's land. This has the
potential to open a host of legal issues ranging from forming a private
attorney generals provision to trespass on private property.
We appreciate the opportunity to comment on the Draft Unified
National Strategy for Animal Feeding Operations. As an industry, we
support the goal of minimizing water quality and public impacts from
AFOs. We hope that the EPA and USDA will take our comments under
careful consideration.
Sincerely,
Jim McAdams, Chair,
Property Rights & Environmental Management Committee,
National Cattlemen's Beef Association.
__________
U.S. Senate,
February 18, 1999.
The Honorable Dan Glickman, Secretary,
U.S. Department of Agriculture,
14th Street and Independence Avenue,
Washington, DC 20250.
Dear Secretary Glickman: It is our understanding that the final
proposal for the USDA/EPA Unified National Strategy for Animal Feeding
Operations will be released on Friday, February 19. Mr. Secretary, U.S.
producers have always taken a leading role in pursuing and implementing
environmentally sound conservation and water quality practices. At a
time of continued low prices in the livestock sector, we believe that
many of the proposals contained in the draft strategy will place
unnecessary and costly regulations on U.S. livestock producers.
Producers have expressed serious concerns to us, and we urge your
careful consideration of the these issues, including the following:
Definition of CAFO and AFO. We urge EPA/USDA to withhold changes to
these definitions without first providing for a formal public comment
period.
Comprehensive Nutrient Management Plans. As you know, many
variables go into feed management. We ask that you provide producers
with the proper flexibility to adjust to these variables when
designating permit requirements.
Land Application. We urge that land application of manure not be
pushed into the National Pollutant Discharge Elimination System (NPDES)
permitting process. Such an action could destroy many environmentally
beneficial systems that are already in place.
Record Keeping. We urge that any plan adapted take into account any
reporting requirements already in place in order to avoid duplicative
and costly paperwork requirements.
NPDES permits. We are concerned with any proposal to issue
individual permits on arbitrarily determined size qualifications that
have no basis in sound, scientifically proven data.
Limited Resources. Based upon the Administration's most recent
budget request, it does not appear that adequate finding will be
available to meet implementation guidelines outlined in the draft
strategy. We assume a plan exists for implementing the strategy if
inadequate financial and personnel resources exist.
We agree that water quality is an important issue that must be
addressed. However, agricultural producers have taken a leading role in
this process through regulatory programs and more importantly their own
voluntary improvements and the assistance of state programs that
promote a cooperative approach to this issue. Any strategy put forward
should buildupon the existing voluntary, incentive based system in
which producers, state arid local government, and the Federal
Government work together on environmental quality issues. Command and
control polices with the heavy hand of government intervention are
counter-productive and will riot have the desired effect that occurs
when producers and government of finials work together to address these
issues.
As you move forward to develop a final strategy, we urge you to
carefully consider the effect any final decision will have on our
livestock producers. We look forward to working with you to ensure that
producer interests are given a fair voice in this process.
Sincerely,
Pat Roberts,
U.S. Senate.
Sam Brownback,
U.S. Senate.
Ben Nighthorse Campbell,
U.S. Senate.
Chuck Hagel,
U.S. Senate.
Paul D. Coverdell,
U.S. Senate.
Wayne Allard,
U.S. Senate.
Larry E. Craig,
U.S. Senate.
James Inhofe,
U.S. Senate.
Kay Bailey Hutchison,
U.S. Senate.
__________
U.S. House of Representatives,
March 18, 1999,
The Honorable Al Gore,
Vice President of the United States,
White House,
Washington DC 20505.
Dear Mr. Vice President: We are writing in regard to your
announcement of the Unified National Strategy for Animal Feeding
Operations (the Strategy). We will continue to scrutinize this very
closely.
You are undoubtedly aware of the long-term hardship endured by most
livestock producers due to low market prices. In the short term, the
situation has been particularly acute for pork producers, as evidenced
by your announcement of $50 million in direct payments during your
recent trip through Iowa. During a February 10, 1999 hearing before the
House Agriculture Committee regarding livestock prices, witnesses
testified that regulatory burdens, whether its food safety,
environmental protection, or price reporting, add costs to doing
business. As price takers in livestock markets, producers are unable to
transfer these costs and must bear them entirely. Furthermore, costs
added elsewhere are typically shifted back to producers. In all cases,
we need to thoroughly understand these costs and who will pay them.
We believe strongly that the American livestock industry wants to
ensure that any future environmental degradation is prevented from
resulting from their operations and that any past degradation is
mitigated as quickly and efficiently as possible. However, we know that
most livestock operations do not have the financial resources available
to comply with burdensome requirements. Further, taxpayers should not
and will not tolerate unnecessary expenditures of government money
devoted to environmental efforts that are not efficient and are not
truly based on legitimate need and sound science.
We are very interested in the effect that this Strategy will have
on livestock operations, as well as EPA and USDA workload and
activities. We realize that you have indicated that this Strategy will
be based on voluntary incentives and that the Administration's budget
includes a request for additional resources devoted to the
Environmental Quality Incentives Program (EQUIP). Is the Administration
contending that this funding is paid for in your budget? Many of the
Administration's proposals for increases in agriculture expenditures
are intended to be offset by the imposition of several user fees. We
consider this proposal unrealistic and will oppose it If these user
fees were to be unposed it would result in new spending for
Administration initiatives as this ``Strategy'' being shifted to the
private sector. Therefore, private industry would be indirectly forced
to fiend such new spending. Congress has consistently rejected this
proposal for several years now and we would expect the same rejection
this year.
The Clinton Administration and some in Congress have said several
times that any new spending that is not offset by cuts in existing
programs in effect would come from funds needed for Social Security. We
see no evidence of corresponding reductions in the budget of the EPA to
pay for these increased voluntary incentive programs to meet these
environmental goals. Without the costs of these programs being imposed
on the Agriculture industry through the imposition of user fees how are
you proposing to pay for these additional costs?
Please provide to the Committee on Agriculture a detailed breakdown
of how the Administration intends to monitor and implement the
voluntary and regulatory program described in this announcement. Please
also provide to the Committee a description of how much of the finding
for these programs will come from the budget of the EPA and how much
from the budget of the USDA and where corresponding reductions in the
budgets of either of the two agencies would be recommended.
Further, we strongly believe that the costs of any program that is
mandated by the EPA should be paid for by reductions in the EPA's
budget and should not come at the expense of any current programs under
the budget of the Agriculture Department. Implementation of these
voluntary incentive programs refeed to in the Strategy would require
Finding for assistance directly to livestock operations as well as to
cover He administrative costs of the increased workload of their
administration. Can you assure us that these costs will be paid for
from He EPA's budget? If not, would you support delaying any action
that would affect livestock operations or agency workloads until such
finding is provided?
We look forward to your response.
Sincerely,
Larry Combest, Chairman,
House Committee on Agriculture.
Richard K. Armey, Majority Leader,
U.S. House of Representatives.
Joe Skeen, Chairman,
Appropriations Subcommittee on Agriculture, Rural Development, Food
and Drug Administration, and Related Agencies.
______
Larry Combest,
Member of Congress.
Joe Skeen,
Member of Congress.
John Boehner,
Member of Congress.
Nick Smith,
Member of Congress.
Saxby Chambliss,
Member of Congress.
Helen Chenoweth,
Member of Congress.
Gil Gutknecht,
Member of Congress.
Doug Ose,
Member of Congress.
Ernie Fletcher,
Member of Congress.
Mike Simpson,
Member of Congress.
Bill Barrett,
Member of Congress.
Jo Anne Emerson,
Member of Congress.
George Nethercutt,
Member of Congress.
John Hostettler,
Member of Congress.
Wes Watkins,
Member of Congress.
Doc Hastings,
Member of Congress.
Dan Burton,
Member of Congress.
Kevin Brady,
Member of Congress.
Robert Aterholt,
Member of Congress.
Jim Nussle,
Member of Congress.
Ed Whitfield,
Member of Congress.
Ron Lewis,
Member of Congress.
Ron Paul,
Member of Congress.
Tom Latham,
Member of Congress.
Richard Baker,
Member of Congress.
Robin Hayes,
Member of Congress.
Wally Herger,
Member of Congress.
Richard Armey,
Member of Congress.
John Cooksey,
Member of Congress.
Jerry Moran,
Member of Congress.
Greg Walden,
Member of Congress.
Richard Pombo,
Member of Congress.
Bob Riley,
Member of Congress.
Bob Goodlatte,
Member of Congress.
John Sweeney,
Member of Congress.
Ray LaHood,
Member of Congress.
John Thune,
Member of Congress.
Henry Bonilla,
Member of Congress.
John Doolittle,
Member of Congress.
Bill Jenkins,
Member of Congress.
Mark Green,
Member of Congress.
Pete Sessions,
Member of Congress.
Bill Thomas,
Member of Congress.
Asa Hutchinson,
Member of Congress.
Greg Ganske,
Member of Congress.
Roy Blunt,
Member of Congress.
Charies Taylor,
Member of Congress.
Steve Buyer,
Member of Congress.
Bob Schaffer,
Member of Congress.
Chip Pickering,
Member of Congress.
Mac Thornberry,
Member of Congress.
George Radonovich,
__________
U.S. House of Representatives,
April 16, 1999.
The Honorable Albert Gore,
Vice President of the United States,
White House,
Washington, DC 20500.
Dear Mr. Vice President: We are writing in response to your recent
announcement of the final USDA/EPA Unified National Strategy for Animal
Feeding Operations. While we appreciate the Strategy's recognition of
Me many practices farmers and ranchers have employed to improve our
nation's water quality, we do have some concerns about the Strategy
itself.
We know the Administration is aware of the significant hardships
being endured by most livestock producers as a result of current low
prices. Given this financial stress, we are concerned that some
provisions in the Strategy will create art additional financial burden
on our already struggling farmers and ranchers. Additional resources
for financial assistance through the Environmental Quality Incentives
Program (EQIP), as proposed in the President's budget, would help to
address some of this need. However, it is presently unclear how you
propose to make the necessary offsetting reductions in spending to
accommodate this increase. Given past Congressional actions, the
Administration's current proposal to fund increases in agricultural
expenditures through new user fees is unrealistic.
We are also very conceded that the accelerated permitting of
Confined Animal Feeding Operations (CAFOs), described in the Strategy
and the development of Comprehensive Nutrient Management Plans (CNMPs)
for all AFOs, will result in dramatically increased workloads for state
agencies and USDA field staff. Many of the livestock producers targeted
by the Strategy will look to USDA's Natural Resources Conservation
Service (ARCS) for assistance in writing CNMPs. Even with assistance
from private sector consultants, this EPA policy change will create a
tremendous cost-burden for USDA, as well as for producers. In fact, to
date neither USDA nor EPA has been able to provide us with requested
information on the workload specifics of the Strategy or the potential
financial impacts on livestock operators.
We see no way for ARCS to keep up with other ongoing conservation
work, while also trying to meet He increased workload that the Strategy
will create. On the one hand, this Strategy calls for an increased
level of technical assistance to meet the implementation schedule. On
the other hand. your budget officials have called for an overall
reduction in ARCS staff in the fiscal year 2000 budget. They mint say
that conservation operation funds are increased in the President's
budget, but on closer examination it becomes clear that you've actually
proposed a level below fiscal year 1998 figures.
In attempting to meet your goals under the AFO Strategy, the
current proposal seems destined to produce a crisis while causing other
important conservation work to fall behind. We would like to know how
you intend to provide additional resources to USDA to accomplish all of
the tasks assigned to them regarding natural resource conservation.
We look forward to your response and to working with you to
maintain and enhance ongoing efforts by our farmers and ranchers to
protect and improve U.S. water quality.
Sincerely,
Charles W. Stenholm,
Member of Congress.
John S. Tanner,
Member of Congress.
Ronnie Shows,
Member of Congress.
James A. Barcia,
Member of Congress.
Ike Skelton,
Member of Congress.
Karen L. Thurman,
Member of Congress.
Martin Frost,
Member of Congress.
Bart Gordon,
Member of Congress.
David D. Phelps,
Member of Congress.
Collin C. Peterson,
Member of Congress.
Eva C. Clayton,
Member of Congress.
Virgil H. Goode,
Member of Congress.
Pat Danner,
Member of Congress.
Ted Strickland,
Member of Congress.
Leonard L. Boswell,
Member of Congress.
Calvin M. Cooley,
Member of Congress.
Sanford D. Bishop,
Member of Congress.
Chrisopher John,
Member of Congress.
Ciro D. Rodriquez,
Member of Congress.
Bennie G. Thompson,
Member of Congress.
Max Sandlin,
Member of Congress.
Mike Thompson,
Member of Congress.
Jim Turner,
Member of Congress.
______
Responses by Ross Wilson to Additional Questions from Senator Chafee
Question 1. You acknowledge that implementation of the zero
discharge standard has not been totally consistent from State to State.
Should CAFOs be subject to the requirements of the strategy in
watersheds where agriculture is established to be a major contributor
to water pollutions
Response. Senator Chafee, the Clean Water Act as it applies to the
cattle industry, has not been applied consistently from State to State
for some of the following reasons: State priorities, lack of funding,
limited staff resources, lack of knowledge of the industry and the
variations in State laws. Texas, Kansas and Nebraska, which amount for
nearly 70 percent of all the beef cattle currently being fed, have
State programs that in some cases are much more stringent than the
Federal program. It is TCFA's position that CAFOs should be subject to
the effluent limitation guidelines (ELG) established by current
regulations which require retention of all process generated waste
water plus all runoff from a 25-year, 2-hour storm. A discharge is
permitted only when rainfall from a chronic or catastrophic stone
exceeds this standard. However, if a CAFO can prove that it will not
discharge into the waters of the United States, it should not be
permitted because there is no jurisdiction under the Clean Water Act.
Individual CAFOs should be held accountable for impairment caused by
the identified CAFOs not other sources of agricultural or non-
agricultural impairment. Much of the data collected to date is nutrient
specific but not source specific. We do take exception to EPA
arbitrarily designating all AFOs in an impaired watershed as CAFOs
without any site-specific determination of contribution to that
impairment.
Question 2. One of your concerns is that EPA will classify
operations under 1000 Animal Units as CAFOs because they are located in
an impaired watershed. What type of evidence would you require to prove
an operation is a source of impairment?
Response. EPA or State regulators should use current monitoring
data, recorded discharge occurrences, on-site inspections and sound
scientific determinations of the source of the pollutants prior to
making the determination that an AFO should be regulated as a CAFO. EPA
should not make arbitrary determinations on data that is incomplete and
lacking in credibility.
Question 3. What action should EPA take if they can establish that
a water body is being impaired by agriculture, but they lack the
resources to conduct site-by-site inspections of every operation?
Response. The cattle producer is only one aspect of agriculture and
only one of many possible contributors of nutrients. There are the
numerous urban contributors and other agricultural operators that may
be contributing to the impairment It would not only be unfair but
economically devastating and an arbitrary and capricious decision by
EPA to place a cattle rancher into the regulatory arena with no
evidence of site-specific impairment because they lack the resources to
make the determination. Our laws were written on the premise that we
are innocent until proven guilty and this type of action would fly in
the face of this premise which our legal system is based upon. EPA
should not be given the authority to shift the burden of proof due to
lack of resources. EPA would need to focus their resources and
prioritize their inspections on a logical determination such as
proximity of the operation to the waterbody. EPA could work with State
and local officials to screen operations. Other groups which can assist
with inspection activities might include soil and water conservation
districts, producer groups with trained personnel or qualified
consultants.
Question 4. You state that regulating the land application of
manure would place manure fertilizer at a competitive disadvantage
compared to commercial fertilizer. How many operations purchase off
site manure for land application?
Response. TCFA has information on the number of feedyards which
sell manure as fertilizer but not how many farmer customers purchase
manure from each feedyard. Virtually all TCFA member feedyards in
Texas, Oklahoma and New Mexico (210 feedyards) which marketed over
seven million head of cattle in 1998 (30 percent of the Nation's fed
cattle supply) market their manure as fertilizer to farmers. This would
also be true of cable feeders in many pads of Kansas, Colorado and
Western Nebraska.
Question 5. What is the market price difference between manure and
chemical fertilizer?
Response. Fertilizer market price is variable based on geographic
location, fertilizer form, and nutrient composition. Nitrogen and
phosphorus and the two primary nutrients purchased by farmers. At
current market prices, it would cost about $50/acre to apply either
manure or chemical fertilizer for application on corn farmland. Manure
has other agronomic benefit beyond that of chemical fertilizer, such as
organic matter, micronutrients and increased soil water holding
capacity. However, any additional regulation of manure would encourage
most farmers to trade the secondary benefits of manure for the
opportunity to use an unregulated nutrient source--chemical fertilizer.
Question 6. What is your estimate of the revenue generated for
cattle operations from the sale of manure?
Response. Most feedyards that sell manure as fertilizer generally
sell their manure to a company which provides the service of cleaning
pens, then hauling and distributing the manure fertilizer to farmer
customers, i.e. a contract manure hauler. Some of these companies also
compost the product which increases the total cost of the end product.
Most of the revenue generated in manure removal, hauling and
distribution is absorbed by contract manure haulers who have developed
both the feedyard and farmer clientele for manure marketing and
utilization. On the average, the process of pen cleaning, transporting
and distributing the manure results in an end product cost of $5 to $6
per ton to the farmer. A normal application rate of 10 tons per acre
(for irrigated corn in the Texas High Plains) results in a cost to the
farmer of $50 to $60 per acre for manure fertilizer.
______
Statement of the American Farm Bureau Federation
Farm Bureau and its affiliated State organizations represent the
interests of producers of all commodities nationwide. We are committed
to improving water quality and share the public's concern about the
quality of our water resources. Farmers and ranchers have made great
strides in addressing water quality concerns. Today, more than two-
thirds of our Nation's waters now meet their designated uses. We
believe that market forces, technology, and incentive-based programs
such as the Environmental Quality Incentive Program, the Wetland
Reserve Program, and the Conservation Reserve Program, have lead to
water quality improvements and will, over time, make additional
contributions in improved water quality in rural areas. Our bottom line
is, that despite commonly held perceptions, water quality trend lines
are moving in the right direction, in large part, due to the success of
American farmers and ranchers.
When problems and solutions are identified and well-defined,
farmers and ranchers have demonstrated a great willingness to solve
problems. Over the past decade, agricultural producers have restored
millions of acres of wetlands and have achieved an annual net gain in
wetland conservation. We have protected over 36 million acres of
fragile soils in the Conservation Reserve Program and another 135
million acres of highly erodible soils are protected through the use of
conservation plans. Various forms of conservation tillage and crop
residue management are used on more than 60 percent of cropland in the
country. The conservation revolution that has occurred on farms and
ranches across the country is a remarkable accomplishment in a
relatively short period of time. Farmers and ranchers have proven that
incentive-based partnerships work. We believe that nutrient management
can and should be approached in a similar manner.
Farm Bureau is troubled that much of the justification for the
administration's Clean Water Action Plan (CWAP) is drawn largely on the
EPA's National Water Quality Inventory.\1\ This report indicates that
agriculture is responsible for over 70 percent of the pollution in our
Nation's surface water. A closer look at the numbers in this report
indicates that they are deceiving, scientifically indefensible, and
result in strong biases against agriculture.
---------------------------------------------------------------------------
\1\ The inventory is a summary of State reports more commonly known
as the 305(b) reports. These reports are required every 2 years by
section 305(b) of the Clean Water Act.
---------------------------------------------------------------------------
The U.S. Geological Survey in their 1993 scientific assessment of
national water-quality trends indicated that the National Water Quality
Inventory (State 305(b) reports) is so severely flawed and
scientifically invalid that it could not be used to summarize water
quality conditions and trends. However, the EPA continues to use State
305(b) reports even though they readily admit the use of drive-by
assessments and the existence of biased data. The misperceptions
continually left by their reports show that there is a national water
quality crisis, that inconsistent and inadequate State programs are
failures, and that agriculture pollutes 70 percent of the Nation's
streams.
Farm Bureau has carefully reviewed EPA's 1990, 1992, 1994 and 1996
National Water Quality Inventories and our analysis shows that what the
EPA doesn't tell, and/or glosses over, in their reports is more
revealing than the perception EPA tries to leave with the casual
observer. In fact, Table 1 shows that EPA has no data for the seven
agricultural subcategories in 35 States, tribes, and territories, but
still publicizes a total for the number of miles of streams and rivers
supposedly impaired by agriculture.
In EPA's report to Congress,\2\ it acknowledges that the assessment
methods used by the States are terribly lacking. In fact, EPA's report
is largely devoid of scientifically defensible data. Despite the
original intent, the U.S. Geological Survey scientists in an article in
Environment,\3\ indicated that EPA's National Water Quality Inventory
is so severely flawed and scientifically invalid that it could not be
used to summarize water quality conditions and trends. Farm Bureau is
very concerned that if the data used to develop the Inventory is so
severely flawed and unscientific that it can not be trusted, policy
makers likewise should reserve policy decisions based on such faulty
technical information.
---------------------------------------------------------------------------
\2\ National Water Quality Inventory, 1992, Report to Congress,
Chapter 1, pages 6-7.
\3\ Environment, Vol. 35, Number 1, January/February, 1993, pages
19-20.
---------------------------------------------------------------------------
Unfortunately, as with many issues, perception and reality often
tend to reach different conclusions. Despite the misperceptions, all
indications are that surface water quality is improving and the trend
will more than likely continue in that direction for some time. (See
Attachment #1--Summary--Trends in Stream Water quality in the United
States.\4\)
---------------------------------------------------------------------------
\4\ ``Stream Water Quality in the Conterminous United States--
Status and Trends of Selected Indicators During the 1980s,'' by Richard
A. Smith, Richard B. Alexander, and Kenneth J. Lanfear, U.S. Geological
Survey, 1993.
---------------------------------------------------------------------------
Recently, both livestock and crop farmers have come under attack
for supposedly contributing excessive amounts of nutrients to the
Nation's streams and rivers. If nutrients from agriculture were
contaminating our rivers and streams on a large scale and doing so in
increasing amount and frequency then it would be reasonable to expect
that the nutrients would be showing up in increasing amounts at the
mouth of the Mississippi River. However, since 1983, the nitrate trend
in the Mississippi River has been just the opposite. In fact, the total
mass of nitrate-nitrogen delivered to the Gulf has been decreasing.
The decline in nitrate cannot be attributed to publicly owned
treatment works (POTWs), precipitation or wildlife populations. POTWs
are serving an increasing population but, with few exceptions, have no
restrictions or requirements for treating or reducing nitrate. Those
that are required to treat ammonia simply convert it to nitrate and
discharge it. Overall, the nitrate contained in precipitation
(atmospheric deposition) should have stayed the same or increased since
the average amount of precipitation has increased.\5\ Wildlife
populations have increased also, so their output of nitrogen has
increased. Therefore, since nitrate from these three sources has
increased, there must have been a clear decrease in one or more of the
other four major potential sources of nitrate, i.e., nutrients from
manure, oxidation of the soil's natural organic matter, nitrogen from
legume crops and/or nitrogen fertilizer.
---------------------------------------------------------------------------
\5\Williams, J., M. Nearing, A. Nicks, E. Skidmore, C. Valentin, K.
King, and R. Savabi. Using soil erosion models for global change
studies. Journal of Soil and Water Conservation, 51 (4): 381-385.
---------------------------------------------------------------------------
Since the POTWs, precipitation, and wildlife are increasing their
output of nitrogen to the streams, that means that farmers are the only
ones that have done anything at all to reduce the amount of nitrate
flowing into the Gulf of Mexico. Farmers have learned to do things
better, faster, cheaper and more efficiently compared to the way they
did things in the 1960s and 1970s. All of this reduction occurred as a
result of incentive programs and market forces rather than rigid
compliance with Federal permits.
There are three distinct periods of nitrate-nitrogen flux entering
the Gulf of Mexico from the Mississippi River since 1955. The first
period is for 12 years, from 1955 to 1966. Loadings ranged from 0.44 to
0.18 million metric tons per year. Interestingly, the trend for that
period was headed down, see Figure 1.\6\ Each year during this first
decade, the nitrate-nitrogen levels decreased by an average of 17
thousand metric tons (this is the slope of the trend line).
---------------------------------------------------------------------------
\6\ This trend line utilizes indicator variables to reference the
three time periods and has a coefficient of determination, or r\2\, of
0.82. The closer the r\2\ is to 1.0, the greater the relationship
between the independent variable (years) and dependent variable
(nitrate loadings).
However, things changed in the mid-1960s and the nitrate-nitrogen
loadings, while varying from year to year, increased steadily and
dramatically to about 1.25 million metric tons per year by 1983.\7\
During this 17-year period, nitrate-nitrogen loadings increased
annually, on average, by 46 thousand metric tons (slope of the line).
---------------------------------------------------------------------------
\7\ Source: U.S.G.S.
---------------------------------------------------------------------------
Almost as suddenly as conditions had changed in 1966, the situation
changed again in 1984. Scientifically-monitored data from U.S.
Geological Survey indicates that nitrate-nitrogen loadings have fallen
dramatically. In other words, except for the flood of 1993, the trend
has been downward since 1984 (the slope returns back down to an annual
decrease of 17 thousand metric tons each year) \8\. This data indicate
nitrate-nitrogen loading began to decrease more than 15 years ago and
appears to indicate that there is not a nitrate crisis in the
Mississippi River.
---------------------------------------------------------------------------
\8\ For this period, the drought years of 1987 and 1988 were
treated as extreme events as was the flood year of 1993. These three
data points were treated as outliers.
---------------------------------------------------------------------------
So what happened? At least three major factors converged in the
early 1980s and began to play themselves out together:
1. The farm economy was very volatile. Many farmers overextended
their land holdings during the high interest rates of the 1970s as they
planted to meet the growing demands of a world market. Then an embargo
was placed onto grain exports to Russia. Meanwhile, energy prices
escalated rapidly and increased the cost of fertilizer causing farmers
to pay closer attention to the amount of nitrogen fertilizer they
applied. Farm debt load was high, grain crops were in surplus and
prices were low. Variable expenditures, such as fertilizer, were one of
the few things that farmers could control and they watched these
expenses carefully. Nitrogen fertilizer use leveled off at 10 to 12
million tons per year and has stayed around that level ever since.
2. Corn researchers continued to produce hybrids that increased
yield and increased their ability to use nitrogen fertilizer. In fact,
on a 5-year rolling average, the number of pounds of nitrogen
fertilizer applied to grow a bushel of corn has declined 22 percent
from a high of 1.31 lbs. N/bushel produced in 1984, down to 1.02 lbs.
N/bushel in 1998.\9\
---------------------------------------------------------------------------
\9\ Sources: Phosphate and Potash Institute, and USDA.
---------------------------------------------------------------------------
3. In the late 1980s, research produced a new late spring soil
nitrogen test and began to show when farmers need not apply additional
fertilizer and to what degree to apply it if it was needed. This test
has received widespread use in Iowa.\10\ The results of using the test
may be beginning to show up as a part of the downward trend in the
concentration of total nitrogen in the Iowa River. This finding was
part of a recent report published by the U.S. Geological Survey which
analyzed 20 years of river data from 1974-1994.\11\
---------------------------------------------------------------------------
\10\ Iowa State University. Nitrogen fertilizer recommendations for
corn in Iowa. Pm-1714, May 1997.
\11\ Lurry, D.L. and D.D. Dunn. Trends in nutrient concentration
and load for streams in the Mississippi River Basin, 1974-1994. U.S.
Geological Survey. Water Resources Investigations Report 97-4223.
---------------------------------------------------------------------------
Farm Bureau believes these examples exemplify market-based
approaches and financial incentives which provide the proper
foundation.
In conclusion, there is growing awareness that cooperative
approaches are likely to be more effective in producing further gains
in environmental compliance and improvements. ``Quite simply, it is
more effective to prevent pollution than to punish violations after
they occur, to harness market forces rather than to rely solely on
command-and-control directives, and to respond affirmatively to firms
that seek partnerships to advance environmental priorities in harmony
with economic activity.'' \12\
---------------------------------------------------------------------------
\12\ Reinventing EPA Enforcement, Theodore L. Garrett, Natural
Resources and Environment, American Bar Association.
---------------------------------------------------------------------------
It is critical that adequate Federal resources be allocated to
address remaining water quality challenges. Collectively, we have spent
over $100 billion over 26 years in dealing primarily with urban point
sources of pollution, which, by all accounts, have only achieved a 35
percent reduction in total nitrogen discharges from POTWs. As priority
now shifts to nonpoint sources, resources should shift as well. The
State Revolving Loan Fund should be retargeted to rural areas and
additional funding should be allocated to better water quality
monitoring, technical assistance and cost-share programs rather than
new regulatory programs at the Federal level that compete for already
scarce dollars.
strategy for animal feeding operations
EPA and USDA-NRCS have issued their Unified National Strategy for
Animal Feeding Operations. This strategy would expand permit-based
regulation to an increased number of livestock farms and would also
require them to prepare and implement nutrient management plans. This
strategy also encourages all farms with livestock to engage in a
voluntary nutrient management program with cost assistance. The
strategy targets for regulation those concentrated animal feeding
operations (CAFOs) that have not yet been regulated, other livestock
farms that do not comply with best management practices for water
quality and farms that are located in ``sensitive'' watersheds. These
last two criteria can be used to increase the number of livestock
facilities being designated as CAFOs and subject to a permit, by
including farms that have fewer than the CAFO definition of 1,000
``animal units'' on a farm.
Comments submitted by AFBF express farmer concerns about the
increased scope of regulatory authority, the expansion of permit-based
regulation, and the adequacy of the water quality data. The voluntary,
incentive-based portion of the strategy recognizes the needs of
agricultural businesses and can work to protect and improve water
quality if properly funded. The financial burden on farmers to develop
and implement nutrient management planning, whether required or
voluntary, is a major limiting factor. At this time of low commodity
prices farmers are unable to invest in capital-intensive water quality
protection. Enhanced Federal and State resources are necessary for NRCS
staffing and for cost-share assistance to farmers. The strategy's
approach for expanding regulation over a greater number of farms makes
accurate water quality data a crucial concern to farmers across the
country.
Our comments to EPA and USDA on the Strategy and to EPA on the
Region 6 general permits are attached.
What is needed are additional resources better targeted to impaired
watersheds and directed at on-the-ground activities and practices that
will result in further water quality improvements. Agricultural
research, technical assistance and conservation initiatives are keys to
continued agricultural abundance. We look forward to working with
members of this committee to develop the concepts and framework needed
to achieve balanced resource conservation.
__________
ATTACHMENT 1
Summary
trends in stream water quality in the u.s.
The United States Geological Survey, in a study, Trends in Stream
Water Quality in U.S.,\1\ has found that traditional indicators provide
evidence of improvement in stream water quality during the decade of
the 1980s, when the economy and population showed significant growth.
The scientific assessment of national water quality from 1980 to 1989
by USGS indicates:
---------------------------------------------------------------------------
\1\ ``Stream Water Quality in the Conterminous United States--
Status and Trends of Selected Indicators During the 1980s,'' by Richard
A. Smith, Richard B. Alexander, and Kenneth J. Lanfear, U.S. Geological
Survey, 1993.
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The National Water Quality Inventory (State 305(b)
reports) is severely flawed and scientifically invalid. EPA's inventory
cannot be used to summarize water quality conditions and trends.
Dissolved-oxygen concentrations changed little from 1980
to 1989, but streams in urban areas showed slight improvement in
dissolved-oxygen conditions, possibly reflecting improvements in point-
source controls. Among the four land-use types (agriculture, forest,
range and urban) the average concentration of dissolved oxygen were
lowest at stations in urban areas.
Nitrate concentrations and yields remained nearly constant
nationally, but they declined in a number of streams draining
agricultural areas where nitrate levels have been historically high.
Total-phosphorus decreased slightly in all land-use
classes. Decreases in total-phosphorus yield were greatest in the
agricultural and range land-use areas.
Suspended-sediment concentrations and yields decreased
slightly in most of the country, and the quantity of suspended sediment
transported to coastal segments decreased or remained the same in all
but the North Atlantic region. The steepest declines occurred in areas
dominated by range and agricultural land.
Concentrations of the toxic elements arsenic, cadmium, and
lead and the organic compounds chlordane, dieldrin, DDT, toxaphene, and
total PCB's all declined significantly.
Trends suggest that control of point and non-point sources
of fecal coliform bacteria improved over the course of the decade.
Downward trends of dissolved solids were especially common
in the central part of the country, the Pacific Northwest, and far
southwestern United States, whereas upward trends were most common in
drainage to the Gulf of Mexico and Atlantic Ocean.
re: comments on the unified national strategy for animal
feeding operations
The American Farm Bureau Federation is the Nation's largest general
farm organization, representing producers of virtually every commodity
grown or raised commercially in the United States. Our members are
concerned about our environment and have a long history of implementing
sound conservation practices in partnership with government.
Agriculture has made substantial investments over the last dozen years
through numerous incentive-based programs that are paying significant
dividends in improved water quality. We believe that the trend is in
the direction of continued improvement in water quality. While there
may be site-specific problems in the livestock sector, these problems
are manageable and we therefore question the need and authority for a
``significant expansion'' of regulatory efforts as proposed by this
strategy.
The draft AFO strategy raises a number of specific concerns and
questions that must be addressed if we are to achieve the desired goal
of protecting water quality in the most economical, most practical, and
least burdensome way for farmers and ranchers. A more detailed account
of these concerns follows.
improper redefinition of afo and cafo
The Clean Water Act (CWA) conferred broad power upon the EPA to
regulate point sources and that CAFOs are deemed to be point sources
under the CWA. On the other hand, AFOs are largely unregulated, and EPA
does not have the statutory authority to regulate them. The CWA does
not define the terms ``CAFO'' or ``AFO.'' Rather, EPA defined both the
terms through regulations. Through the AFO strategy, it appears that
EPA is planning on expanding the definition of CAFOs to include
operations that have not historically been treated as CAFOs but rather
as AFOs or simply as agricultural stormwater runoff. To the extent that
this can be achieved lawfully, EPA must go through the formal
rulemaking procedures. However, EPA's ability to expand the definition
of CAFO is restricted by congressional intent.
In the CWA Congress intended to control the release of ``end-of-
pipe'' effluents from CAFOs, in that only those CAFOs which would
collect and concentrate waste for discharge through a definite point
source outlet would qualify as point sources under the definition and
be subject to the NPDES permitting program. Accordingly, the AFO
strategy is unlawful to the extent that it seeks to treat runoff from
precipitation as a type of discharge that can be regulated under the
NPDES program. Indeed, it is our position that a facility may not be
deemed to be a CAFO simply because precipitation-induced runoff from
fields upon which animal wastes have been applied leads to pollutants
entering waters of the United States. The proposed strategy seeks to
regulate the application of manure by a farmer to his fields.
EPA's proposal to condition permits on the adoption of certain best
management practices, such as the application of manure at agronomic
rates, clearly exceeds the authority delegated to the agency by
Congress to address nonpoint sources of pollution. EPA's position that
stormwater runoff from fields on which animal wastes have been applied
represents a point source of pollution is clearly unreasonable in light
of the overall regulatory focus of the CWA. Any move by EPA to include
such conditions in NPDES permits would therefore be an unlawful
circumvention of Congress' implicit prohibition against the control of
nonpoint sources of pollution through direct Federal regulation.
confusion regarding those who are regulated
There is confusion and a lack of awareness by individual producers
about the requirements of the NPDES program and any obligations with
which they might have to comply. This is largely due to the view held
by most States that the CAFO requirements did not apply to agricultural
livestock operations, regardless of the number of animals, if they
produced crops and feed on the farm and had sufficient land to spread
the manure. According to the prevailing view, these were simply dairy,
hog, poultry and other types of farms, not ``animal feeding
operations.'' The draft AFO strategy seems to indicate otherwise and
does not make clear how these producers are supposed to definitively
determine whether they are subject to regulation.
The confusion surrounding the definitions of AFO and CAFO naturally
leads to differing interpretations and the draft AFO strategy simply
exacerbates this confusion. The draft AFO strategy should aim to
clarify the definitions of AFO and CAFO and the obligations of those
subject to the corresponding regulations. Otherwise, with the CWA's
dual administrative and enforcement authority whereby both EPA and
those properly delegated states may administer and enforce the NPDES
program, farmers are likely to be caught in the middle of a fight
between the States and the Federal Government regarding their
obligations under the CAFO regulations.
expansion of the npdes permitting program
We are concerned about the intention to expand current NPDES
permitting to include a larger number of facilities below the 1,000 AU
threshold. While EPA currently has the regulatory authority to require
certain AFOs to obtain NPDES permits, we believe that this authority is
limited to the very few AFOs that discharge pollutants from their
confinement areas to waters of the United States. We also believe that
the draft AFO strategy's intent to regulate a significant number of
AFOs below the 1,000 AU threshold is neither justified nor is it the
most effective means to achieve progress on the ground. Indeed, the
magnitude of such a change would require significantly more resources
for a program that has been historically a low priority of the States
because of the lack of adequate resources. EPA and USDA have set up the
States and farmers for failure. It will be a monumental task for State
water quality agencies to permit those confinement operations above
1,000 AUs, let alone permit operations with fewer than 1,000 AUs. The
financing for farm assistance and for necessary staff is not available
to accomplish this goal.
Furthermore, the development of the Unified Watershed Assessment
ties future nonpoint source funding from EPA to those watersheds listed
as impaired. With the amount of watersheds that have been listed by
States, the connection between the Unified Watershed Assessment and the
AFO strategy means that more livestock operations will be subject to
regulation, putting a greater strain on resources.
need for improved water quality data
Data collection is given a very high priority in the AFO strategy.
This data and ``information'' is ostensibly collected for several
reasons, including better decision-making, enforcement and public
information. The AFO strategy proposes to collect information on the
location, characteristics, size, type of animals and environmental
impacts of animal feeding operations from a variety of databases,
including the Department of Agriculture. This information will then be
cross-referenced with data on impaired and priority water bodies. We
are concerned from two standpoints about this approach.
First, the collection of data on animal feeding operations (farms
and ranches) is a general cause for concern from the standpoint of an
individual's right to privacy and the potential misuse or abuse of data
and other information.
We are very troubled about the potential for abuse and or misuse of
this information by individuals or groups with other agendas or who
simply do not understand agricultural practices. Furthermore, the
information collected and made available to the public will not be
limited to just those operations over the 1,000 AU threshold, thus
potentially subjecting all farms with livestock to criticism or
harassment over their farming practices. We strongly support an
approach that protects private information as a necessary component to
the development of efforts to protect agricultural water quality.
Second, the collection of data on livestock farming operations via
the USDA database of farm program participants presents another very
serious concern. The EPA has attempted to obtain information about
livestock farming operations from databases of participants in USDA
programs such as NRCS technical assistance and the Environmental
Quality Incentives Program (EQIP). This is very disturbing and presents
a serious threat to the continued success of voluntary incentive-based
programs like EQIP, the Wetland Reserve program, the Conservation
Reserve Program and other similar initiatives. The great conservation
gains in the recent years that will have direct long-term benefits for
water quality have come through voluntary, incentive-based approaches
associated with farm programs, not through regulatory programs under
the CWA. The success of those initiatives is due in large part to the
long history of voluntary partnerships between farmers, ranchers and
the Department of Agriculture. Over the last half-century, a unique
relationship has developed between the USDA, specifically the Natural
Resources Conservation Service (NRCS), and farmers and ranchers. It is
a relationship built and sustained on trust, confidential advice,
information and technical assistance. That unique relationship is
seriously breached when access to confidential, voluntarily provided
farm-specific information is granted to other agencies for regulatory
purposes or for the purpose of generally informing the public.
Additionally, NRCS's traditional role must be protected. NRCS autonomy
must be clearly established with relation to the regulatory role of
other government agencies. We appreciate the NRCS-issued policy
statement that prohibits the release of site-specific information in
conservation plans and case files.
Lastly, while we generally agree with the approach of targeting
priority watersheds first, the water quality data on which this
approach is premised is inadequate. Farm Bureau has extensively
reviewed the agency's 1990, 1992, and 1994 National Water Quality
Inventories. In the agency's subsequent report to Congress, it
acknowledges the weakness in the assessment methodology. The U.S.
Geological Survey has stated in published reports that the National
Water Quality Inventory data is so severely flawed and scientifically
invalid that it could not be used to summarize water quality conditions
and trends. The fundamental problem with the information from the State
section 305(b) reports is the overall low priority and limited
resources States place on water quality monitoring. The reasons the
National Water Quality Inventory report numbers are so contentious is
because:
(1) There is no scientific, national random sample taken to assess
river miles;
(2) States tend to assess water bodies with suspected problems;
(3) Scientific monitoring accounts for less than 40 percent of the
reported data;
(4) More than 42 percent of the data is based on visual evaluation
of a water body;
(5) Data may be several years old;
(6) Data is often double- and triple-counted;
(7) There is unscientific source attribution;
(8) No consideration is given to natural background levels; and
(9) No assessment is made of stream morphology (natural erosion).
Unfortunately, as with many issues, perception and reality often
tend to reach different conclusions. Despite the perceptions, all
indications are that surface water quality is improving and the trend
will more than likely continue in that direction for some time. For
these reasons, we are concerned that this data is not reliable and that
policy decisions surrounding the AFO strategy should be made very
carefully and with the fundamental weakness of the National Water
Quality Inventory in mind. The agency should make all efforts to
support its decision-making with scientifically valid monitoring data.
resources and implementation
The AFO strategy proposes to inspect all priority CAFOs within 3
years and all CAFOs within 5 years. In addition, it seeks to
``significantly expand'' permitting by targeting the largest CAFOs by
2003 and all others by 2005. We seriously question whether the agency
and the States have sufficient financial and personnel resources to
accomplish that task within those time frames. But we strongly believe
the industry does not have the resources to meet those goals. We have
spent over $100 billion in the last 26 years to address point source
discharges from primarily urban and suburban facilities, principally
publicly owned treatment works. The resources devoted to rural point
and nonpoint efforts have come largely through the agricultural
programs and some CWA section 319 grants to States. The spending has
been woefully inadequate. Given the enormity of the task, it is
inappropriate to establish such an ambitious time frame for compliance
and enforcement without the necessary resources to accomplish the task.
regulation vs. incentives
We strongly believe that the approach of significantly expanding
the CAFO program moves in the wrong direction. Not only do we believe
the agency's recent efforts to expand the scope of regulated activities
goes beyond congressional intent, but we believe as a matter of policy
it is more appropriate to address these inherently nonpoint source
issues through incentive-based programs rather than through increased
regulation and permitting. The voluntary program as outlined in the AFO
strategy can work to assist farmers in their efforts to improve water
quality. The usual problem is in securing the necessary financial
commitment of government assistance to allow the farmer to implement a
CNMP. We are strongly concerned that farmers will bear the blame for a
plan's failure, when in reality the problem is the result of a lack of
government resources and financial incentives.
Additional sources of funding to assist producers must be
developed. Existing authorities, such as the section 319 grants
program, the Clean Water State Revolving Fund, and the Environmental
Quality Incentives Program (EQIP) must be directed and funded to meet
the growing need for assistance.
state primacy
The efforts of farmers, conservationists, local governments, and
State governments must not be undermined or hampered by the development
and implementation of this strategy. Individual States have responded
strongly to water quality issues and are working cooperatively with
their agricultural community on effective programs to improve water
quality while maintaining farm businesses. In New York, the New York
City Watershed Agricultural Program and the Skaneateles Lake Watershed
Agricultural Program and in Iowa the Raccoon River Watershed Program
are working examples of cooperative, voluntary, and incentive based
programs formed for the purpose of maintaining public drinking water
quality. Other States are engaged in similar watershed based efforts
source pollution in the Clean Water Act must be recognized.
conclusion
Agricultural producers have achieved extraordinary conservation
gains through voluntary, incentive-based programs to conserve fragile
soils and wetlands and to protect water quality and wildlife habitat.
We urge the agency to rethink its approach outlined in the draft AFO
strategy and to expand the use of its incentive-oriented program to
address the larger issue of nutrient management and nonpoint source
runoff. The solution to livestock environmental problems is to develop
policies which completely utilize all organic residuals as resources.
This will not happen under the draft AFO strategy. The draft strategy
incorrectly assumes that more of the current regulatory system will
solve the problems. We can only improve water quality protection in
agriculture when a farmer-oriented plan that is based upon economic
reality and properly supported by government incentives is developed
and implemented.
______
Statement of the Associated General Contractors of America Regarding
Clean Water Action Plan Before the Senate Environment and Public Works
Committee
The Associated General Contractors of America (AGC) appreciates the
opportunity to submit testimony questioning the Administration's Clean
Water Action Plan. The plan, as announced by President Clinton in the
1998 State of the Union address and detailed in the president's budget
submission should concern all Americans. This proposal would divert
money from the successful State Revolving Fund (SRF) programs and limit
each State's ability to utilize SRF money to address the most important
environmental problems in the State. More importantly, this diversion
of funds from proven, successful and needed programs that provide clean
water to new less tangible programs could restrict each State's ability
to meet Federal drinking and wastewater treatment standards.
The Clean Water Action Plan (CWAP) would change the Nation's
wetlands policy from ``no net loss'' to increasing wetlands by 100,000
acres. It also focuses on agricultural runoff as a source of pollution.
Most of these activities are already eligible for funding from the
State revolving funds, but at the State's discretion. States are free
to use their revolving funds to create and implement non point source
management programs and to preserve and protect estuaries under the
national estuary program. The CWAP would simply limit each State's
ability to determine priorities. The SRFs have been successful
programs. Do not let them be hamstrung by another dictate from
Washington.
The Clean Water State Revolving Fund (CWSRF) and the Drinking Water
State Revolving Fund (DWSRF) were created by Congress to provide for
the treatment of wastewater and to provide safe drinking water to all
areas of the country. These programs have had a dramatic effect,
providing wastewater treatment to 190 million people and safe drinking
water to an estimated 243 million people.
Despite the obvious successes, the estimated 20-year needs for
these programs continue to grow. In 1988, EPA estimated that it would
require $83.5 billion to meet the country's projected wastewater needs.
In 1996, EPA estimated the country's 20-year (2016) wastewater needs to
be $139.5 billion. Unofficial EPA estimates for 1999 show about $200
billion in wastewater needs (a 240 percent increase in estimated needs
since 1988). Private estimates of wastewater needs are even more
staggering--$330 billion, or four times the 1988 estimates. Private
estimates of drinking water needs are $325 billion. However, the
Federal commitment thus far would address little more than 2 percent of
the combined wastewater and drinking water needs. By 1997, Federal
capitalization of this program has been $ 13.2 billion, which States
have grown to $24 billion through bond issues and payments of
principles.\1\ Clearly the needs of this program have overrun original
estimates, but the overall goal of providing communities with
wastewater treatment facilities is succeeding. These programs are
stretched thin to meet the demonstrated needs and should not be seen as
a piggy bank to finance new programs.
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\1\ ``State Revolving Fund: A Decade of Successful SRF Performance
1987-1997'' Council of Infrastructure Financing Authorities and
Environmental Financial Advisory Board.
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Despite the extensive needs and tremendous support from the
American people, President Clinton's fiscal year 2000 budget proposed
cutting the Clean Water State Revolving Fund from $1.35 billion to $800
million, a $550 million reduction. It is unthinkable that as needs
continue to grow President Clinton would cut the funding by 41 percent.
The President should have recommended an increase not a decrease in
these funds.
The second assault on the State revolving fund programs was the
proposed Clean Water Action Plan. The proposed plan was drafted as a
legislative rider to the appropriations bill, not as part of a needed
reauthorization of the Clean Water Act, which expired in 1994. It would
focus on nonpoint source issues, which are already eligible for funding
from the State revolving funds. EPA's proposal would actually restrict
the States' ability to address their own most pressing environmental
needs. In addition, EPA is asking Congress to sanction a program EPA
has been promoting for years. Since the lapse in the Clean Water Act
authorization, AGC has been highly critical of the Administration's
failure to support reauthorization legislation, and to stonewall
Congressional initiatives.
Equally disturbing is a new proposal by Senator Ron Wyden to direct
``a significant portion'' of the CWSRF funding to promote ``smart
growth'' of cities and suburbs. Senator Wyden has said the plan would
``set aside a portion of clean water dollars and then invite applicants
to produce creative homegrown solutions to urban sprawl.'' \2\ With the
mounting wastewater needs, this is hardly the time to divert the
precious and limited funding from these critical State revolving funds.
This program is too important to short-change in favor of the latest
political campaign fad.
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\2\ Senator Ron Wyden's comments to the Environmental Media
Services news breakfast.
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AGC believes that the Nation's clean water program should be viewed
for what it truly is--an investment in the future health and economic
viability of the Nation. Each $1 billion invested in the construction
of wastewater facilities generates some 52,000 new jobs. Even more
importantly, wastewater treatment creates opportunities for economic
development in communities by allowing new industries and new homes to
locate there. These facilities are fundamental elements of the Nation's
environmental infrastructure. At this time, when our global competitors
are recognizing the importance of infrastructure as the vital
foundation on which future economic growth is based, the United States
must provide the needed capital investment to allow our Nation to
thrive.
The 1972 Clean Water Act created a Federal grant program that was,
in 1987, transformed into the Clean Water State Revolving Fund program
to fund the construction and modernization of municipal sewage plants.
Congress recognized that simply funding grants was not leveraging the
government's funds effectively. Low-cost loans are provided to local
governments to finance needed facilities. The loans are then repaid and
new loans are made from the CWSRF.
The Drinking Water State Revolving Fund originated in the Safe
Drinking ter Act Amendments of 1996. The program, which operates like
the Clean Water State Revolving Fund, assists public water systems to
finance the costs of infrastructure needed to achieve or maintain
compliance with the Safe Drinking Water Act requirements and to protect
public health.
AGC is proud of the role the construction industry has played in
improving water quality. Our members build and rehabilitate the
facilities financed by these two programs, both of which have been
responsible for significant water quality improvement. Since enactment
of the Clean Water Act in 1972, water quality has improved
significantly on over 50,000 miles of waterway. Streams and lakes, once
devoid of fish and other aquatic life, now support abundant and varied
populations. The foundation for many of these environmental
improvements is in the construction grants program and the SRF
programs.
The needs, however, are still staggering. In the Environmental
Protection Agency's (EPA) first report to Congress in January, 1997
entitled Drinking Water Infrastructure Needs Survey, the EPA reported
that the Nation's 55,000 community water systems must invest a minimum
of $138.4 billion over the next 20 years to install, upgrade, or
replace the infrastructure. Of this total, $12.1 billion is needed
immediately to meet current Safe Drinking Water Act (SDWA) mandates.
The EPA's report is a conservative estimate because many of the systems
surveyed were unable to identify all of their needs for the full 20-
year period.
In fact, a more complete and independent study released in October
of last year by the American Water Works Association (AWWA) found that
the capital investment needs for the water supply community over the
next 20 years is $325 billion.\3\ The EPA's emphasis in their survey
was on identifying the utility investment needed to comply with the
Federal mandates issued under the Safe Drinking Water Act Amendments
(SDWAA), so that Congress could better understand the costs imposed by
Federal drinking water regulations. The objective of the AWWA
investigation, on the other hand, was to examine the longer-term
infrastructure investment requirements of U.S. water utilities,
regardless of whether they are directed at current or future needs over
the 20-year period.
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\3\ American Water Works Association: Infrastructure Needs for the
Public Water Supply Sector, October, 1998.
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Even if we use EPA's estimates, the water infrastructure needs are
overwhelming. EPA's report indicates that the largest category of need
is installation and rehabilitation of transmission and distribution
systems--$77.2 billion. Aging, deteriorating pipes can allow water in
the distribution system to become contaminated, leading to illnesses
from ingestion of waterborne pathogens as well as interruptions in
water service. Most needs in this category involve the extraction and
replacement of existing pipe.
The second largest category is treatment, constituting a total 20-
year need of $36.2 billion. Storage needs are the third largest
category at $12.1 billion. The fourth category of need is source
rehabilitation and development, estimated at $11.0 billion. An
additional $1.9 billion in need is categorized as ``other.''
In addition to the extensive capital needs, the American public is
very concerned about water quality and supports the Federal Government
investing in the effort to clean up our water supply. In a recent
survey commissioned by the Rebuild America Coalition, 66 percent of the
American people from all regions and areas of the country describe
spending on America's infrastructure as a ``strong investment in
America.'' 74 percent are even willing to pay 1 percent more in taxes
if it meant you could guarantee a safe and efficient sewage and water
treatment system. The support transcends party lines, carrying
overwhelming support from Republicans, Independents and Democrats (see
attached document).
AGC believes in these times of economic prosperity, and with the
increasing needs in our Nation's drinking water and wastewater, now is
not the time for the Federal Government to lessen its commitment to
clean water. Toward that end, AGC urges Congress to appropriate stable
annual funding for the Clean Water State Revolving Fund and for the
Drinking Water State Revolving Fund. In addition, this funding should
not reduce the State's flexibility to spend this money its individual
priorities.
______
Atlanta Audubon Society,
June 2, 1999.
Georgia Forestry Association,
Norcross, GA.
Dear Georgia Forestry Community: On behalf of Audubon, I commend
Georgia's Forestry community on the completion of the recent revision
of voluntary forestry Best Management Practices (BMP). The effort was
the most comprehensive review of forestry BMPs ever undertaken in
Georgia and included input from some members of the conservatin
community as well as the forest products industry, Federal, and State
biologists and officials.
The new Georgia BMPs for forestry are a step in the right
direction, significantly strengthening protection of the State's water
quality related to the potential impact of timber harvesting and other
activities. By working together:
We agreed to stop clear cutting the Streamside Management
Zone;
We added protection for ephemeral streams;
We improved protection for trout streams;
We included recent Federal law for site preparation in
wetlands and stream crossing requirements. And clearly distinguished
legal requirements from voluntary practices by the use of the Justice
Scales symbol;
We provided greater flexibility for on-the-ground
professionals to apply their management judgement;
We included a strong recommendation for written plans with
basic lay-out and planned actions to improve communication between the
landowner and forest professionals;
We included recommendations on other management objectives
for Wildlife Management, Protected Species, Aesthetics and Sensitive
Sites in addition to protecting water quality.
As compared with other southern States, the industry has recorded a
high level of compliance with forestry BMPs in the past. We look
forward to continued emphasis on educating landowners, loggers and
others to obtain greater compliance in the future with these more
stringent BMPs.
As Georgia's population continues to grow, there will be continued
pressures on land use and the State's water quality. As members of the
conservation community, we urge the forest products industry and other
industries in the State to continue to review their activities for
their potential impacts on the quality of Georgia's water and total
environment.
We join the forestry community in supporting voluntary Best
Management Practices to protect our environment because it reduces
regulation and government costs and allows greater flexibility to
utilize new equipment and techniques.
Sincerely,
Lolly Lederberg,
President, Atlanta Audubon Society.
______
Letter from Michael Evans
May 11, 1999.
Senator John Chafee,
Environment and Public Works Committee,
Washington, DC.
Dear Senator Chafee: I am writing to comment on the Clean Water
Action Plan and it's implementation. First of all, I live in Wyoming,
was born and raised here. My wife and I operate a small cattle ranch
that has been in the same family for 103 years. We are both involved
with State environmental organizations, and I am an elected supervisor
for the local conservation district.
These locally-controlled districts seem to be given the opportunity
of implementing CWAP. I think it is a great chance for conservation
districts to actually address water quality issues. I am disppointed
that there has not been very much communication between representatives
from EPA/USDA and local districts. I do not recall nor can I find any
record of our district ever receiving any correspondence from anybody
involved with CWAP at the Federal agencies.
There are some conservation districts in Wyoming that have been
monitoring water quality for several years. I am proud to say ours is
one of them. For example, we are also involved in a collaborative
effort involving 5 districts known as the Tri-County Watershed
Assessment project. This is a significant effort to monitor some of the
water bodies, in three major watersheds, that are on the 303d impaired
list. The information obtained will be used to identify any problem
areas that may exist and cooperative efforts established between the
districts and land owner/producers to insure clean water quality. This
project was established before CWAP came along. There are other
watershed-based projects in Wyoming that districts arid CRM groups are
involved in. It seems to me that what is already taking place in many
Wyoming watersheds is what CWAP is all about. It would not take but a
little effort, to expand on what is in place. These efforts should be
credited and acknowledged by the powers to be in our benevolent Federal
agencies. The lofty and desirable goals put forth in CWAP are what
local conservation districts are all about.
I think we are all missing the chance to involve Federal support
and expertise with local commitment and effort. CWAP gives us a pretty
good framework to work with, if there is any attempt, by all parties to
avoid power and turf battles, some positive results would take place. I
do think there is real commitment by the local districts, that I am
aware of, to implement the Clean Water Act and not just get out of
doing what needs to be done. There will always be the ``fox guarding
the chicken house'' syndrome just as there will be the ``feds should
leave us alone'' sentiment.
I do not support the Wyoming Association of Conservation Districts
directed litigation against CWAP. Like I said above, I think we are
missing a chance to establish good working relationships which will
hopefully lead to the protection and, if necessary, clean up of our
water bodies. I also resent my local property tax dollars being used to
sue Federal agencies which I help fund. I would also like to say that
most Federal agency folks do not know what clean water looks like until
they come and see it in Wyoming.
I hope your oversight hearings strengthen the commitment to our
water resources by involving both Federal and local conservation
efforts. If you can come up with a process that actually implements
CWAP through locally-led efforts I am all for it. I may be naive and
Pollyanna about this but it seems possible to me. There are many
analogies and lessons to be learned from the events taking place in
Kosovo today. Ranchers in the west are but a small enclave. Too many of
us are unwilling to change let alone admit that change is needed. Yet
we have obviously done a pretty good job of stewardship, otherwise our
land would not be coveted by all the folks who have gelded their region
to the point where they require a change. Sadly that change is an easy
escape for them, to simply move. For me, their choice requires major
changes on my part. I personally am willing to make some of those
changes. I and most people who live and work with the land know that in
order to sustain a livelihood, we must protect the quality of all of
our natural resources. Today for example while I was feeding my cows in
one of our typical spring snow storms I had the privilege of observing
Northern Goshawks. They along with a pair of Peregrine Falcons find
this place good enough to tolerate along with my family.
Regardless of what you and your committee hearings come up with,
most people in Wyoming and their elected conservation district
officials do care for the quality of our water and can and will do the
best we can to maintain that quality. Perhaps with a little gentle
prodding, CWAP can be implemented in the west. Remember, this is arid
country, and if you are thirsty enough you will drink most any water.
Especially if you work for EPA, are on a continental divide trail
trekking vacation and the support vehicle with the Evian got lost. With
that, I do not hope to be taken too lightly. I do hope that political
considerations are set aside and with the use of credible water quality
data this State's and this Nation's water is protected. Again CWAP is a
good beginning.
Good luck in your deliberations and thank you for considering my
comments.
Sincerely,
Michael Evans.
______
Michigan Department of Environmental Quality,
May 12, 1999.
Hon. John H. Chafee, Chairman,
Senate Environment and Public Works Committee,
Washington, DC.
Hon. Max Baucus, Ranking Member,
Senate Environment and Public Works Committee
Washington, DC.
Dear Senators Chafee and Baucus: I understand that the Senate
Environment and Public Works Committee has scheduled a hearing with
regard to the Clean Water Action Plan. I would like to share with you
Michigan's comments which address concerns we have about a component of
this plan--the final United States Department of Agriculture (USDA)/
United States Environmental Protection Agency (USEPA) Unified National
Strategy for Animal Feeding Operations (Strategy) that was released on
March 9, 1999.
Michigan supports the concept of minimizing water quality and
public health impacts, ensuring the long-term sustainability of animal
agriculture, building on the strength of existing programs, and
focusing technical and financial assistance to support animal feeding
operations as outlined in the guiding principle of the Strategy.
Although the Strategy suggests that the emphasis will be on voluntary
efforts to achieve these goals, there are specific concerns that
Michigan has with the final Strategy. These concerns include the
Strategy's lack of flexibility to implement functionally equivalent
measures that result in environmental protection and the fact that the
Strategy places too much emphasis on a 'command arid control'
regulatory approach. The Strategy is very prescriptive and permit
oriented and thus does not lead to the establishment of a Federal and
State partnership that is necessary for successful implementation. The
Strategy will divert limited staff resources from higher priority
programs. The Strategy also does not clearly define the environmental
benefits and outcomes it is designed to achieve.
state flexibility and functionally equivalent programs
The Strategy does not provide for the flexibility to recognize
functionally equivalent State programs that meet environmental goals
and standards. The Strategy only recognizes functional equivalency
``where a State can demonstrate that its program meets the requirements
of an NPDES [National Pollutant Discharge Elimination System]
program.'' This is a process, not an environmental goal. The
establishment of a national performance standard is the best way for
the USDA and the USEPA to promote and measure environmental protection.
Michigan believes that all States must have the flexibility to
implement their own functionally equivalent State strategies based on
measures of environmental performance, not the mandated Federal
process. Michigan supports the establishment of a national performance
standard to promote and measure environmental protection. The 25-year,
24-hour storm exemption is a well-recognized national standard and
design criteria that provides a realistic and environmentally
protective performance standard.
Attachment 1 outlines what Michigan believes should be the
components to determine a State program that is functionally
equivalent. Basing a program on these components would provide more
meaningful environmental protection than prescribing a ``one-size-fits-
all'' permit process.
environmental benefits and outcomes
Michigan does not believe that addressing water quality issues
associated with animal feeding operations should require a
reprioritization of our water quality programs. Michigan is very
concerned that the permit effort will be much greater than envisioned
by the USEPA. Based on USEPA estimates, implementing the Strategy could
require an additional 1,000 permits in Michigan, which would almost
double our individual permits issued. We are not certain that the
additional effort for permitting will provide any greater reduction in
pollutant loading than would occur in the highly utilized voluntary
program that we are developing. Michigan has concerns about the overall
impact on water quality programs and if the States are forced to permit
these animal feeding operations, an actual degradation of water quality
may occur by the shifting of resources from other higher priority
areas.
The Strategy attempts to use the Clean Water Act to address other
non-environmental issues associated with animal feeding operations. We
do not believe it is appropriate to use an environmental permit process
in this manner.
For your information, I have included a letter (Attachment 2) on
the draft Strategy signed by all USEPA Region 5 Environmental and
Agriculture Directors. A majority of the concerns expressed in this
letter have not been resolved in the final Strategy.
We appreciate the opportunity to share our perspectives with you on
this important issue and respectfully request that you add our comments
to the hearing record. The new Strategy must allow the States
flexibility to implement functionally equivalent programs that meet
stated environmental goals and focus on the implementation of strong
voluntary programs--not processes. Michigan has a strong partnership
with agriculture, and is proceeding with an environmentally sound
approach to deal with animal feeding operations of all sizes. If you
have any questions, please contact me.
Sincerely,
Russell J. Harding,
Director.
______
ATTACHMENT 1
Required Components of a Functionally Equivalent Animal Feeding
Operation Program
1. Legally Established Performance Standard
2. Voluntary Program
(a) Education
(b) Technical Assistance
(c) Financial Assistance
3. Complaint Response
4. Spill/Release Response
5. Enforcement Provisions
6. Proactive Inspections
7. Statewide Water Quality Monitoring
______
ATTACHMENT 2
Ms. Denise C. Coleman,
U.S. Department of Agriculture,
Natural Resource Conservation Service,
Washington, DC.
Dear Ms. Coleman: The Environmental and Agriculture Directors of
the U.S. Environmental Protection Agency (EPA) Region 5 States of
Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin (States)
have jointly compiled the following comments concerning, the U.S.
Department of Agriculture (USDA)-EPA Draft Unified Strategy for Animal
Feeding Operations (Strategy). With 20 percent of livestock operations
in the United States occurring in the Region 5 States, this is a very
important issue. While signing this letter together, individual States
may also be submitting comments concerning the Strategy.
The States support the guiding principles of the draft Strategy.
However, there are specific issues with which the States have concern.
The Strategy does not allow enough flexibility for the States to
implement functionally equivalent measures that result in environmental
protection. The Strategy is very prescriptive and permit-oriented and
thus does not lead to the establishment of a Federal and State
partnership that is necessary for successful implementation. The
Strategy does not clearly define the environmental benefits and
outcomes it is designed to achieve.
state flexibility and functional equivalent programs
The States believe that any national Strategy for Animal Feeding
Operations must be sufficiently flexible to recognize State
implementation of functionally equivalent programs that result in the
meeting of a national performance standard. The establishment of a
national performance standard is the best way for the USDA and EPA to
promote and measure environmental protection.
The States support the concept of nutrient management plans that
focus principally on the collection, storage, and utilization of manure
as an organic fertilizer. The States believe the existing effluent
guidelines offer opportunities to work with landowners and reduce the
potential impact they have on States' water quality. The States support
and recognize the importance of inspection programs to provide some
review of pollution control activities. The nature of these inspection
activities must allow the States sufficient flexibility to individually
tailor these programs. The States strongly support the education and
training promoted in the Strategy through the voluntary USDA programs
and encourage enhancing these programs, both technically and
financially, to increase participation.
prescriptive and permit oriented
The States have several concerns about the overall impact on water
quality programs. If a significant shift is forced upon the States to
permit Animal Feeding Operations, an actual degradation of water
quality may occur by taking resources from other higher priority areas.
Sincerely,
Rebecca Doyle,
Director,
Illinois Department of Agriculture.
Joe Pearsen,
Assistant Commissioner,
Indiana Office of the Commissioner of Agriculture.
Dan Wyant,
Director,
Michigan Department of Agriculture.
Sharon Clark,
Acting Commissioner,
Minnesota Department of Agriculture.
Fred Dailey,
Director,
Ohio Department of Agriculture.
Ben Brancel,
Secretary,
Wisconsin Department of Agriculture,
Trade and Resource Consumer Protection.
Mary A. Gade,
Director,
Illinois Environmental Protection Agency.
John Hamilton,
Commissioner,
Indiana Department of Environmental Management.
Russell J. Harding,
Director,
Michigan Department of Environmental Quality.
Lisa Thorvig,
Acting Commissioner,
Minnesota Pollution Control Agency.
Jennifer Trell,
Interim Director,
Ohio Environmental Protection Agency.
George E. Meyer,
Secretary,
Wisconsin Department of Natural Resources.
______
Statement of Sally Yozell, Deputy Assistant Secretary for Oceans and
Atmosphere National Oceanic and Atmospheric Administration, Department
of Commerce
Good morning, Mr. Chairman, and members of the committee. I am
Sally Yozell, Deputy Assistant Secretary for Oceans and Atmosphere of
the National Oceanic and Atmospheric Administration (NOAA). I am
pleased to be here today to discuss NOAA's role in the Clean Water
Action Plan.
NOAA is proud to be a part of the Clean Water Action Plan. The
Action Plan represents a major commitment by the Administration to
improve the quality of our water resources by addressing problems of
habitat degradation and polluted runoff through a collaborative
approach among Federal agencies and in conjunction with State, tribal
and local governments and affected interests.
the problem
Water quality is an important issue in coastal areas. Runoff from
sources far upstream, as well as those on adjacent lands, ultimately
makes its way to the coasts and consequently our coastal waters are in
jeopardy. Every year, degraded water quality causes warnings and
thousands of days where beaches are closed to the public and nearly 30
percent of U.S. shellfish growing areas continue to be restricted or
closed, resulting in substantial losses to tourism, recreation and
seafood industries. Harmful algal blooms (HABs), which pose a serious
threat to water quality, have impacted nearly every coastal State. The
rapid expansion of HABs in the past two decades is responsible for
economic losses approximating $100 million per year. Hazardous waste
sites in certain coastal areas may also pose significant threats to
coastal life and habitat.
The increasing frequency and magnitude of these problems demands
that significant action be taken now to restore and the health of our
vital waters. The Clean Water Action Plan is designed to mobilize
Federal resources to assist States, tribes, local governments and
private citizens to protect and restore America's waters on a watershed
by watershed basis.
collaboration under the clean water action plan
In the spirit of greater government efficiency, the Action Plan
calls for a new way of doing business--moving away from single-focus
programs to broad-based coordination to protect and restore water
quality and natural resources on a watershed basis. NOAA is committed
to this cooperative, collaborative approach.
As you have heard, States and some tribes have identified their
priority watersheds--those in greatest need of restoration--through
what is called the ``unified watershed assessment'' process. Through
the Action Plan, the Federal agency partners are working together to
assist them in these efforts. We are also coordinating our efforts to
assist other public and private stakeholders and improve resource
stewardship on Federal lands.
One of the ways we are doing this is by forming regional Federal
coordination teams to coordinate Federal activities and streamline
technical assistance to our State, tribal, local and private partners
to undertake watershed restoration and other activities under the
Action Plan. Federal coordination teams have been convened in 12 cities
across the country and are meeting this week in Shephardstown, West
Virginia to develop a strategy to coordinate their activities under the
Action Plan and improve the delivery of Federal services to our non-
Federal partners.
noaa's role
NOAA is taking a leadership role on twelve coastal-related action
items under the Action Plan to deal with problems of habitat
degradation and polluted runoff in coastal areas. We are coordinating
with local, State, tribal and private entities and other Federal
agencies to make these actions items as effective as possible.
Today I would like to focus on three key elements of our role under
the Plan: (1) helping to ensure that the best available science is
employed to support the efforts under the Plan, especially regarding
efforts to deal with harmful algal blooms and hypoxia; (2) supporting
State-led efforts to reduce polluted runoff into coastal waters and
estuaries, and (3) helping to ensure that cleanup actions at coastal
hazardous waste sites protect and restore natural resources and result
in cleaner coastal waters. I would like to describe the issue in each
of these three areas, NOAA's role and what we have accomplished, and
our plans for the year 2000.
1. Science for Preventing Harmful Algal Blooms and Hypoxia
a. What is the issue?
Harmful Algal Blooms (HABs) and hypoxia are increasing in magnitude
and frequency. Hypoxic conditions (low oxygen) are found in 50 percent
of the Nation's estuaries. The dead zone in the Gulf of Mexico is the
most dramatic example of the problems associated with severe hypoxia
along our coasts. HABs, such as red tides, brown tides, paralytic
shellfish poisoning, and others, reoccur every year in every part of
our coastal waters with each occurrence costing the local and National
economy from $ 2 million to over $20 million. Although HABs are a
naturally occurring phenomenal the linkage between their increased
occurrences and pollution cannot be ignored. The need to better
understand all the causes and continue to develop the most effective
solutions for local and State managers for these hypoxia and HABs
underpins NOAA's research efforts.
b. What happened and what is likely to happen?
In 1998, HABs were reported along the U.S. coast resulting in fish
kills and mammal and bird mortalities as well as closures of shellfish
harvests in several regions. For example:
Over 50 sea lions died along California's southern coast
and many deaths were associated with domoic acid poisoning resulting
from localized blooms of the diatom Pseudo-nitzschia australis in and
near Monterey Bay. Some researchers suggest that blooms of this diatom
may have been linked to unusually high nutrient input from higher than
normal river flow in the system. If this relationship proves to be
correct, it would mark the first time that blooms of this diatom have
been linked to nutrient enrichment of coastal waters through river
inputs and therefore land-use. Domoic acid, the toxin responsible for
the sea lion mortalities in California, was also found along the Oregon
coast and the toxin was found at near record levels in Washington's
shellfish.
Pfiesteria piscicida was reported in the Neuse River,
North Carolina, estuary and associated with fish kills and possibly
with human health effects such as eye irritation in river watermen.
However, the fish lesion and mortality events were not recorded in
Maryland's eastern shore tributaries in 1998, even though conditions
leading into the summer appeared ideal for expression of the toxic
population. The absence of Pfiesteria outbreaks was attributed to low
fish populations in the systems and the absence of summer storms and
runoff, which possibly act as triggers.
Paralytic shellfish poisoning (or PSP), which generally
results from accumulations of the toxic dinoflagellate Alexandrium
spp., continued closure of the Alaskan coast to shellfish harvest and
caused additional closures along portions of the Oregon coastline to
shellfishing in the summer of 1998. PSP-contaminated shellfish beds
along Maine's coast were also closed to harvesting for several summer
months.
Blooms of the toxic dinoflagellate Gymnodinium breve,
responsible for Florida's Red Tides, were again observed off the
State's western coastline, while along the Texas coast, reports of
thousands of dead fish coincided with blooms of G. breve.
In 1999, the summer will likely be typical of past summers, with
events expected in the Gulf of Mexico and, likely, our West coast:
Sea lions with symptoms similar to those observed in last
year's domoic acid event on California's coast have already been
reported in southern California, with the toxin reported in the urine
of the ill animals.
Paralytic shellfish poisoning (PSP) is very probable in
Alaska, as this is a permanent problem.
Shellfish closures along Maine's coasts from PSP are also
highly probable due to potential seeding from local beds of resting
stages of the toxic dinoflagellate as well as delivery of distant
populations via coastal currents.
Similarly, Red Tides-caused G. breve are likely to be
observed on Florida's west shelf as blooms of this organism have been
annual events in 23 of the last 24 years.
Outbreaks of Pfiesteria piscicida in mid-Atlantic States
are more difficult to predict as researchers are just beginning to
identify the environmental conditions supporting expression of the
cell's toxicity. However, high fish densities in some of the shallow,
poorly-flushed coastal systems common along the Mid-Atlantic coast
could trigger outbreaks.
c. What is NOAA's role and what have we accomplished?
NOAA's role in preventing HABs and hypoxia is to support research,
monitoring, assessment and response, in cooperation with our State,
Federal and academic partners. Specifically, FY 99 funding through the
NOAA component of the Clean Water Initiative is supporting three
innovative programs to address HABs:
ECOHAB, (The Ecology and Oceanography of HABs) is an interagency
research program. Agencies involved include NOAA, EPA, ONR, NSF, and
NASA.
NOAA is contributing $1.15M for new projects on
development of prevention, control, and mitigation practices to reduce
HAB impacts on fisheries and mariculture; assessments of economic
impacts of HABs; research on the Long Island brown tide organisms
responsible for the collapse of the Eastern Long Island scallop
industry; and studies of HAB ecology, physiology, and toxicity. The
funding announcement for this year was recently published (ECOHAB 99).
NOAA is also providing $2M in continuing support for
ECOHAB 97 and ECOHAB 98 projects including the development of
biological and physical HAB models in the Gulf of Maine and Gulf of
Mexico, a means to control recurring blooms in these areas, and
rigorous multi-disciplinary investigations of Pfiesteria's biology,
ecology, toxicity, and detection.
ECOHAB research is also being used to develop forecasting
models for HABs, which will be incorporated into State HAB monitoring
programs and shared with the public, policy makers, and scientific and
public health communities. Distribution of this information is
expanding through use of national websites sponsored by the Coastal
Ocean Program and National and State Sea Grant institutions.
expanding noaa-state partnership for monitoring and assessment
Operating continuously since 1997, NOAA, with EPA,
continues to provide funds to mid-and south Atlantic, and Gulf States
to expand existing State monitoring programs for Pfiesteria and fish
health. The goal is to provide States with increased capabilities for
pro-active detection of toxic events and to develop a national database
to identify the environmental conditions required for toxic outbreaks
of Pfiesteria piscicida.
NOAA is working with the States of Maryland and Florida to
initiate multi-year pilot studies to intensively survey areas of high
outbreak risk. These studies include field testing of several promising
sensors for continuous monitoring of the environmental conditions
associated with HAB outbreaks.
Funds are also being used for shared, cross-cutting
activities such as a national list-server for distributing Pfiesteria/
fish health information quickly, workshops on standardized sampling
practices, training sessions for plankton and fish lesion
characterization, and molecular detection of Pfiesteria piscicida's
cells and toxicity.
developing the interagency federal event response plan for hab
NOAA is leading the development of the Federal Event
Response Plan for HABs to provide support to States experiencing major
HAB events, including Pfiesteria outbreaks. Under this plan NOAA, EPA,
FDA, and CDC have identified services and resources that they can
provide to States for responding to Pfiesteria outbreaks and the plan
will be expanded to cover other types of HAB events nationwide.
FY 1999 funds will also support rapid response
capabilities to supplement existing State programs and assist those
States that have not yet implemented rapid response planning for HAB
events.
The Harmful Algal Bloom and Hypoxia Research and Control Act
(HABHRCA), passed by Congress in 1998, recognized the importance of
prevention, control, and mitigation of HAB impacts by authorizing
multi-agency assessments of the occurrence, impacts, and costs of HABs
in U.S. coastal waters and the options currently available for reducing
those impacts. NOAA will continue to work with all of its partners to
undertake these assessments and work to transfer this knowledge to
improve coastal water.
NOAA is also working with other agencies to address the issue of
hypoxia in our coastal waters. As part of a process of considering
options for response to hypoxia, the Mississippi River/Gulf of Mexico
Watershed Nutrient Task Force was formed during the Fall of 1997 in
which NOAA is a participant. The Task Force asked the White House
Office of Science and Technology Policy to conduct a scientific
assessment of the causes and consequences of Gulf hypoxia through its
Committee on Environment and Natural Resources (CENR). While NOAA has
been asked to lead the CENR assessment, oversight is spread amongst
several Federal agencies and the assessment itself is being conducted
by teams that include academic, Federal, and State scientists from
within and outside the Mississippi River watershed. The assessment of
the causes and consequences of Gulf hypoxia is intended to provide
scientific information that can be used to evaluate management
strategies, and to identify gaps in our understanding of this problem.
d. What do we plan to do in 2000?
Continuation of these efforts in FY 2000 is critical for addressing
prevention, control, and mitigation of HABs in U.S. coastal waters.
With increasing threats to public health and safe seafood in U.S.
waters, it is important for the U.S. to move to the next level in
managing its coastal waters to reduce or eliminate HAB impacts.
Much has been learned about the incidence of HABs, including
Pfiesteria-complex organisms. What is needed now is to determine what
environmental conditions trigger blooms of potentially toxic algae;
develop reliable and inexpensive methods for detecting bloom organisms
and their toxins; and develop techniques for mitigating HAB impacts on
coastal communities.
In FY 2000 NOAA plans to be able to initiate pilot studies in
States whose waters are susceptible to toxic Pfiesteria complex
outbreaks. NOAA plans to support studies to test the performance and
reliability of improved methods and technologies to monitor the
presence and toxicity of Pfiesteria-complex organisms during suspected
outbreaks. NOAA also plans to implement the Federal Event Response Plan
for HAB.
2. supporting state-based coastal nonpoint programs
a. What is the issue?
Increasing outbreaks of harmful algal blooms along all coasts, the
dead zone in the Gulf of Mexico, closed shellfish beds and decreasing
fisheries are all signs that coastal waters are being stressed by
polluted runoff. According to State water quality reports, urban runoff
and storm sewers together are the second leading source of pollution in
the Nation's surveyed estuarine waters. States have also reported that
agricultural pollution is the fifth leading source of pollution of
surveyed estuarine waters. Coastal population continues to expand,
exacerbating runoff pollution from new development and human related
activities. For example, growth along the southern California coast
from Santa Barbara to San Diego has averaged about 3,400 newcomers
every week. In partnership with coastal States under the Coastal Zone
Management Act (CZMA) and with EPA, as co-administrator of the Coastal
Nonpoint Program, NOAA is directing a great deal of effort to combat
polluted runoff and to conserve and restore coastal waters.
b. What is NOAA's role and what have we accomplished?
In 1990, Section 6217 of the Coastal Zone Act Reauthorization
Amendments created a new State-based Coastal Nonpoint Pollution Control
Program. The Coastal Nonpoint Program represented a departure from
previous efforts to tackle polluted runoff in that it called on State
CZM agencies to work together with State water quality agencies to pool
their land management and water quality expertise to design programs to
control polluted runoff from land-based sources into coastal waters.
Patterned after the largely successful approach to controlling
pollution from point sources such as pipes and outfalls, the Coastal
Nonpoint Program established a technology-based approach for dealing
with polluted runoff. This approach generally consists of implementing
management measures to control nonpoint sources of pollution before
they impact coastal waters. Management measures include techniques such
as controlling erosion from construction activities, managing nutrients
from fertilizers applied to agricultural land, reducing the impacts of
stormwater runoff, and protecting areas that are particularly important
for water quality. The measures are detailed in guidance developed by
the Environmental Protection Agency (EPA), in consultation with NOAA,
and address a broad spectrum of nonpoint pollution sources, including
agriculture, forest harvesting activities, urban runoff, marinas,
impacts associated with the construction and maintenance of dams and
channels, and other alterations of natural systems. State coastal
nonpoint programs were developed in accordance with this guidance and
submitted to NOAA and EPA for approval. These State coastal nonpoint
programs will be administered by a variety of State and local agencies
through implementation of new and existing authorities, plans, and
projects.
Under the Clean Water Action Plan, NOAA and EPA were asked to aim
for completion of the review and conditional approval of the first 29
Coastal Nonpoint Programs by June 30, 1998. I am happy to say that we
have met this deadline. While coastal States generally have made
progress in addressing this difficult issue, some further program
development efforts are needed. In addition, three new States (Texas,
Georgia, and Ohio) have since joined NOAA's Coastal Zone Management
Program and are in the process of developing their coastal nonpoint
programs. A fourth State, Minnesota, is expected to have its CZM
Program approved later this year. At that time, it too will begin the
development of a coastal nonpoint program.
NOAA and EPA are working diligently with the coastal States to
complete development of their coastal nonpoint programs and are
providing technical and financial assistance to support effective
program implementation. The funding that NOAA received in FY 99 under
the Clean Water Initiative is being provided directly to the coastal
States and territories to help them complete development and begin
implementation of their Coastal Nonpoint Programs. This will
substantially improve their ability to manage polluted runoff and
reduce coastal water pollution.
For example,
Through its Coastal Nonpoint Program, Rhode Island
conducted a study that identified a significant threat to water quality
from failing septic systems. As a result, last month the State adopted
final revisions to the Salt Ponds Region and Narrow River Special Area
Management Plans (SAMPs) to address nutrient loading from septic tanks.
The Rhode Island Coastal Management Program also continues to implement
its marina certification program and eight marinas and terminal
operators have developed Operation and Maintenance Plans for
controlling Nonpoint Source Pollution for upland portions of their
facilities.
The Massachusetts Coastal Zone Management Program (MCZM),
through its Coastal Nonpoint Program, is developing and implementing a
program to address nonpoint source pollution from marinas and boaters.
MCZM's focus will be on the development of a guidance document,
technical assistance, and education that will help marina operators and
boaters control nonpoint source pollution.
Oregon's Department of Environmental Quality (DEQ) has
developed a Watershed Assessment Manual which is to be a diagnostic
tool accessible to a non-technical audience. The manual will assist
local and watershed councils to identify priority water quality and
habitat issues which will help to target restoration efforts.
c. What do we plan to do in 2000?
In FY 2000 it is critical for the Federal Government to provide
States with adequate financial resources to implement their coastal
nonpoint program. It is also imperative that we provide our four new
State coastal programs with the support they need to develop their
coastal nonpoint programs and to support on-the-ground work by the
original 29 coastal States and territories to implement pollution
control measures and support locally-led restoration efforts, similar
to those mentioned above. NOAA's efforts will complement the efforts of
EPA and USDA, working with their partners, the State water quality and
agriculture agencies, to provide a comprehensive program that relies on
the combined strength of all resource management agencies. This
innovative program is important to achieving the goals of the Clean
Water Action Plan and is an example of the opportunities presented
under the Action Plan to maximize efficiencies in providing resources
and expertise to protect water quality and conserve and restore natural
resources.
3. reducing pollution from hazardous waste sites
a. What is the issue?
Hazardous waste sites in the coastal zone degrade and destroy
valuable marine, estuarine, and coastal habitat by contaminating the
waters and sediments that support fish, shellfish, marine mammals, and
other natural resources. There are many types of hazardous waste sites,
from Superfund sites to Brownfield sites. Each hazardous waste site has
its own set of contaminant issues that must be approached in a
watershed context in order to restore and protect our valuable coastal
waters.
b. What is NOAA's role and what have we accomplished?
NOAA's Coastal Resource Coordination (CRC) program works within the
remedial process at hazardous waste sites with EPA and other lead
cleanup agencies to develop remedies that protect coastal resources,
supporting habitats, and human health. These activities result in more
productive and diverse habitat for fish and wildlife, cleaner coastal
waters, and healthier coastal ecosystems. Since 1985, the CRC program
has ensured protection and enhanced recovery and restoration of coastal
habitats at over 500 hazardous waste sites.
The Coastal Resource Coordination (CRC) program consists of a
network of Coastal Resource Coordinators (CRCs) and a technical support
group. NOAA's CRCs are environmental scientists, located in EPA coastal
regional offices, that provide technical support in evaluating natural
resource concerns at hazardous waste sites and improve coordination
with Federal and State natural resource trustee agencies. CRCs and
supporting staff evaluate ecological risk, recommend protective cleanup
levels and strategies, and advocate remedies that prevent or minimize
adverse effects to coastal resources and waters that support them.
The CRC program is primarily funded with Superfund program money
that is passed to NOAA through an interagency agreement with EPA. Due
to the nature of this funding, the range, extent, and priorities of
NOAA's stewardship efforts at coastal hazardous waste sites are
limited. With FY99 appropriations under the Clean Water Initiative, the
CRC program has been able to continue its previous level of
accomplishment at hundreds of waste sites across the country as well as
serve a broader constituency, accelerating cleanups at a range of waste
sites by building stronger relationships with States and local
communities. The program is working on new sites that pose a
significant risk to coastal natural resources, applying its expert to
pressing environmental issues such as persistent toxic contamination in
sediments and fish, and is working more closely with States and local
communities on restoration of contaminated coastal habitats.
Specifically, the CRC program has been:
providing technical assistance and training on contaminant
issues directly to States such as Massachusetts, New Jersey, New York,
Florida, Illinois, Michigan, Louisiana, Texas, California, and Oregon.
working with the Department of Defense and States to
develop protective, cost-effective clean-up strategies and appropriate
restoration of natural resources at Federal facilities.
providing technical support to EPA and the States on
ecological risk and other contaminant issues at active industrial
facilities.
developing watershed database/mapping projects in Hudson
River/Newark Bay, NY/NJ; Lehigh River, PA; Anacostia River, Washington,
DC, St. Andrews Bay, FL, Willamette River, OR, Kalamazoo River, MI, and
Puget Sound, WA which will be used for designing sampling and cleanup
strategies, and conducting restoration planning at a variety of sites,
including four Brownfields pilot projects; and
conducting studies in cooperation with Federal and State
agency scientists to evaluate exposure and contamination in fish in
order to address specific contaminant problems and improve the health
of our coastal waters.
c. What we plan to do in 2000?
Continued support will allow NOAA to continue: (1) working on sites
where States have the lead for cleanup activities, (2) working on non-
National Priorities List industrial and military facilities and other
non-Superfund sites, (3) conducting site-specific research studies, and
(4) developing watershed mapping tools to improve remedial decision-
making and restoration planning in partnership with States and other
coastal resource managers. It will also allow the CRC program to
continue providing technical assistance directly to States and local
communities to accelerate restoration of hazardous waste sites and
Brownfield sites, improving the health of our coastal waters and the
resources they support. Coastal areas where these activities have been
initiated include Long Island Sound, Newark Bay, Delaware River,
Christina River, San Francisco Bay, Willamette River and Puget Sound.
accomplishments and partnerships
The partnerships developed under the Clean Water Action Plan has
allowed NOAA and other agencies to accomplish a number of items to
improve our Nation's coastal waters. Beside the ones listed above, NOAA
has made several noteworthy accomplishments over the past year:
we completed a report and CD-ROM on the status of
shellfish bed conditions nationally, the factors contributing to
harvest limitations and the potential to restore impaired areas;
we worked with Fishery Management Councils to identify
Essential Fish Habitats in 38 Fishery Management Plans and proposed
them for public comment;
we developed two new interagency partnerships for wetlands
restoration--with EPA and Forest Service--and plan to explore other
opportunities to work more closely with other agencies;
we worked with EPA, the Corps, NRCS and USFWS to develop
draft guidance on wetlands restoration, creation and enhancement. This
draft was made available to the public through the internet and this
improved public access has proven to be invaluable. Although this is a
working draft undergoing peer review, we have already solicited and
received extensive public input and plan another public review.
closing
The Clean Water Action Plan is an innovative, cost-effective and
coordinated effort to protect public health and restore America's
waterways, by addressing problems at a watershed level, building on
existing programs and forging new partnerships. The FY 2000 request for
NOAA builds upon the strengthens of these program successes by asking
for modest increases to continue improving our ability to understand
HABs and develop HAB action plans, and to continue aiding the States in
developing and implementing their nonpoint programs. We at NOAA are
proud to be a part of this effort and we are committed to working with
you, with our Federal partners, and with State, local, tribal and
private stakeholders to make the collaborative vision of the Clean
Water Action Plan a reality.
______
Wind River Environmental Quality Commission,
Fort Washakie, Wyoming.
Hon. Craig Thomas,
U.S. Senate, Washington, DC.
Dear Senator Thomas: As the Director of the Wind River
Environmental Quality Commission (WREQC) of the Wind River Indian
Reservation (Reservation) at Fort Washakie, Wyoming. I offer the
following comments and questions regarding the Clean Water Action Plan
(CWAP) to the Senate Environment and Public Works Committee.
1. The WREQC office is concerned that neither its staff or any
other tribal environmental office were invited or notified of this
hearing. This office and its counterparts around the Nation are
responsible for the administration of many environmental programs,
including several which fall under the auspices of the Clean Water
Act--to which the CWAP has direct relevance.
2. The WREQC office is currently involved in the process of
developing, water quality standards (WQSs) for the Reservation and has
used the State of Wyoming WQSs as a template. The U.S. Environmental
Protection Agency (EPA) Region VIII Headquarters Office has indicated
that the existing Wyoming WQSs do not meet the minimum requirements of
the Clean Water Act and must be modified to attain EPA approval.
Because of the problems with the Wyoming WQSs, as identified by EPA,
the WREQC office has been closely following both the WQSs revision(s)
process and the Total Maximum Daily Load (TMDL) issue currently being
undertaken by the State of Wyoming. The WREQC office has identified
problems with the Wyoming WQSs and the proposed revisions as they
relate to Reservation water quality. In addition, the TMDL issue has
made the WREQC office aware of several errors and inaccuracies with the
current 303(d) list (stream impairment listing) as submitted by the
State to EPA. These problems include incorrect classifications of
Reservation water bodies which may lead to a lack of protection for
public drinking water supplies or, on the other hand,
``overprotection'' of water bodies which are not capable of supporting
the beneficial uses as listed by the Wyoming Department of
Environmental Quality (WDEQ).
3. As noted above in paragraph #2, the WREQC office is very
concerned the WDEQ's lack of accurate information or credible data
regarding State waters and the Reservation in particular. The WREQC
office is mandated to provide the highest possible protection of the
environment on the Reservation. It is the belief of the WREQC office
that the WDEQ can not provide Reservation residents with adequate
protection of its water bodies to ensure that they are ``fishable and
swimmable,'' as required under the Clean Water Act.
4. The State of Wyoming is the only State not to complete its
United Watershed Assessment (UWA) which was required as part of the
CWAP. This inaction has led to the State being ineligible for
supplemental Non-point Source Water Quality funds from the EPA. Most of
these funds ($1,000,000.00) would have been available to the State's 34
Conservation Districts. The WREQC office has initiated contact with the
four conservation districts which coincide with Reservation's exterior
boundaries. These contacts are essentially attempts to coordinate and
cooperate with the districts to ensure adequate and comparable data
collection activities. The WREQC office realizes that the inactivity of
the State with regards to UWA has eliminated the funding opportunities
which may have been available to these conservation districts. The
WREQC office did complete its UWA for the Reservation and expects to
access any supplemental funds which are made available as a result of
the CWAP implementation.
conclusion
The WREQC office would like to express its concerns that, with
regards to the CWAP, tribal issues have not been identified and tribal
involvement has not been solicited by the Senate Environment and Public
Works Committee. Perhaps, in your capacity as a member of the Senate
Committee on Indian Affairs, you would introduce this important subject
to that committee. Tribal concerns regarding the CWAP must be clearly
identified and tribal environmental offices and governments must be
allowed to actively participate in these important public discussions.
Thank you.
Sincerely,
Don Aragon,
Executive Director for WREQC.
______
Statement of the National Association of Conservation Districts, NACD
Water Resources Committee
The National Association of Conservation Districts represents the
Nation's 3,000 conservation districts and more than 16,000 men and
women who serve on their governing boards. Established under State law,
conservation districts are local subdivisions of State government
charged with carrying out community-based programs for the protection
and management of natural resources. Conservation districts work with
nearly two-and-half million cooperating landowners and operators and
provide assistance in managing and protecting nearly 70 percent of the
private lands in the contiguous United States.
Conservation districts have a successful 60-year history of
carrying out local programs to improve the quality of the Nation's land
and water resources. Partnering with State water quality agencies,
State conservation agencies, the U.S. Department of Agriculture (USDA),
the U.S. Environmental Protection Agency (EPA), and other agencies and
organizations, conservation districts are key players in implementing
Federal, State and local water quality protection and enhancement
programs. Thus, we have a keen interest in initiatives such as the
Clean Water Action Plan (the Plan).
The Clean Water Action Plan, which the Vice President unveiled in
February 1998, has more than 100 nationally identified resource
priorities and many of the actions identified will affect local
producers, conservation districts and local resource priorities. While
we recognize that there will be many opportunities to implement
voluntary components of the Plan through the conservation district
delivery system and the locally-led conservation process, we are deeply
concerned that the EPA and USDA developed the initial draft of the Plan
with little, if any, public or State and local government input. The
agencies indicate throughout the plan, however, that successful
implementation of many action items will rely on stakeholders, local
governments and State efforts and involvement. The Nation's
conservation districts oppose the method by which the Clean Water
Action Plan was developed based on a lack of local input and the
regulatory overtones contained in the Plan.
We also have concerns over one of the Plan's key components that
could have a serious impact on agricultural producers--the Unified
National Strategy for Animal Feeding Operations (AFO Strategy). Many
States have nutrient management and permitting programs that already
address animal feeding operations. Although the final AFO Strategy,
released March 9, addresses some of our initial concerns relative to
State primacy in dealing with runoff from animal feeding operations, we
feel strongly that the current authority for States to develop these
programs must not be preempted or compromised by the AFO Strategy. Nor
should the Federal Government add conflicting requirements to existing
State programs. We strongly urge EPA to work with State and local
governments in refining and implementing the AFO Strategy and allow
existing State programs that are attaining and maintaining federally
approved State water-quality standards to operate in lieu of new
Federal requirements.
The AFO Strategy and other Plan components also will have a serious
impact on the workload of the agencies implementing it, as well as that
of their non-Federal partners. USDA's Natural Resources Conservation
Service (NRCS), working with local conservation districts, will bear
the primary responsibility for providing technical assistance to help
operators develop some 450,000 comprehensive nutrient management plans
called for in the strategy. Further, the Plan also calls for
implementing integrated pest and crop management systems, developing
non-AFO nutrient and animal waste management plans, installing
practices to reduce erosion and runoff and restoring and/or enhancing
100,000 acres of wetlands per year by 2005.
While these goals are praiseworthy, we must caution that
considerable increases in Federal, State and local resources will be
required to achieve them. NRCS and conservation districts, both of
which will be instrumental in achieving these objectives, are already
critically short of resources needed to address their current
conservation priorities. Our National Field Workload Analysis showed a
gap of more than 7,000 staff years needed to address 1996 Farm bill
priorities and the ongoing workload of NRCS, conservation districts and
their partners. To absorb an additional workload of the magnitude
envisioned in the Clean Water Action Plan without providing substantial
increases in funding will seriously compromise our efforts to provide
quality assistance to affected landowners and operators.
Although we are troubled with the way the Plan was developed, we do
support a number of its individual initiatives. For example,
conservation districts strongly support the President's budget
initiative to increase funding for USDA's Environmental Quality
Incentives Program, EPA's Section 319 program, the Forest Service's
State and Private Forestry Programs to help address the increased
workload. We also believe that the proposed EPA Better America Bond
Fund offers considerable opportunities to help communities address
water quality issues through preserving green space and redeveloping
brownfields.
Conservation districts are committed to preserving our Federal-
State-local partnership's voluntary, incentives-based approach in
providing assistance to landowners and operators. We also support EPA's
role as a regulatory agency within its current authority under the
Clean Water Act. We do not believe that additional laws or rules are
needed that would broaden EPA's regulatory and enforcement authority
over animal feeding operations.
The Nation's conservation districts are committed to finding and
implementing voluntary, site-specific solutions to water quality issues
developed through partnerships with other local, State and Federal
agencies. While it is important to have a regulatory framework in place
to deal with point source water quality issues under Clean Water Act
jurisdiction, we believe the Federal Government's primary role in
addressing nonpoint source pollution should be to continue providing
technical and financial resources to help farmers and ranchers to craft
voluntary solutions. For every dollar we invest in conservation
technical and financial assistance, American taxpayers receive multiple
benefits, including cleaner and safer surface and groundwater sources.
There are none more committed to good land and water stewardship
than America's 3,000 locally-led conservation districts. We welcome the
challenge of restoring and maintaining the Nation's waters and stand
ready to work with the Congress and the Administration to accomplish
these goals.
We appreciate the opportunity to share conservation districts'
views on the Clean Water Action Plan.