[Senate Hearing 106-699]
[From the U.S. Government Publishing Office]
S. Hrg. 106-699
WATER QUALITY
=======================================================================
HEARING
before the
COMMITTEE ON AGRICULTURE,
NUTRITION, AND FORESTRY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
WATER QUALITY
__________
FEBRUARY 23, 2000
__________
Printed for the use of the
Committee on Agriculture, Nutrition, and Forestry
U.S. GOVERNMENT PRINTING OFFICE
67-026CC WASHINGTON : 2000
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY
RICHARD G. LUGAR, Indiana, Chairman
JESSE HELMS, North Carolina TOM HARKIN, Iowa
THAD COCHRAN, Mississippi PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky KENT CONRAD, North Dakota
PAUL COVERDELL, Georgia THOMAS A. DASCHLE, South Dakota
PAT ROBERTS, Kansas MAX BAUCUS, Montana
PETER G. FITZGERALD, Illinois J. ROBERT KERREY, Nebraska
CHARLES E. GRASSLEY, Iowa TIM JOHNSON, South Dakota
LARRY E. CRAIG, Idaho BLANCHE L. LINCOLN, Arkansas
RICK SANTORUM, Pennsylvania
Keith Luse, Staff Director
David L. Johnson, Chief Counsel
Robert E. Sturm, Chief Clerk
Mark Halverson, Staff Director for the Minority
(ii)
C O N T E N T S
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Page
Hearing:
Wednesday, February 23, 2000, Water Quality...................... 1
Appendix:
Wednesday, February 23, 2000..................................... 53
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Wednesday, February 23, 2000
STATEMENTS PRESENTED BY SENATORS
Lugar, Hon. Richard G., a U.S. Senator from Indiana, Chairman,
Committee on Agriculture, Nutrition, and Forestry.............. 1
Fitzgerald, Hon. Peter G., a U.S. Senator from Illinois.......... 23
Harkin, Hon. Tom, a U.S. Senator from Iowa, Ranking Member,
Committee on Agriculture, Nutrition, and Forestry.............. 5
Lincoln, Hon. Blanche L., a U.S. Senator from Arkansas........... 6
Thomas, Hon. Craig, a U.S. Senator from Wyoming.................. 3
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WITNESSES
Adler, Robert, Professor, University of Utah, College of Law,
Salt Lake City, UT............................................. 37
Barrett, John, Cotton and Grain Producer, Edroy, TX.............. 40
Browner, Carol, Administrator, Environmental Protection Agency,
Washington, DC................................................. 9
Glickman, Dan, Secretary of Agriculture, United States Department
of Agriculture, Washington, DC................................. 12
Johnson, Paul, Director, Iowa Department of Natural Resources,
Des Moines, IA................................................. 32
Kraft, James A., Vice President, General Counsel and Secretary,
Plum Creek Timber Company, Inc., Seattle, WA................... 28
Savage, Roberta, Executive Director, Association of State and
Interstate, Water Pollution Control Administrators, Washington,
DC............................................................. 34
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APPENDIX
Prepared Statements:
Lugar, Hon. Richard G........................................ 54
Baucus, Hon. Max............................................. 80
Adler, Robert................................................ 116
Barrett, John................................................ 143
Browner, Carol............................................... 56
Glickman, Dan................................................ 74
Johnson, Paul................................................ 95
Kraft, James A............................................... 81
Savage, Roberta.............................................. 100
Document(s) submitted for the record:
Statement of the American Farm Bureau Federation............. 150
Statement of the American Society of Civil Engineers......... 213
Letter to Hon. Max Baucus, submitted by Ms. Carol Browner,
EPA Administrator.......................................... 245
Letter to Hon. Richard Lugar, submitted by James A. Kraft,
Vice President, General Counsel and Secretary, Plum Creek,
Timber Compant............................................. 247
Comments of the Society of American Forester's, submitted by
Michael T. Goeryan, Jr., Director, Forest Policy........... 253
Comments of the National Pork Producers Council, submitted by
John McNutt................................................ 273
Testimony for the record, submitted by National Association
of State Foresters......................................... 287
Statement of the National Association of State Departments of
Agriculture................................................ 297
Letters from LSU Ag Center, the Glenn-Colusa Irrigation
District, and the Northern California Water Association,
submitted by Cleveland H. Marsh, Vice President, Domestic
Policy, USA Rice Federation................................ 302
Questions and Answers submitted for the record............... 334
WATER QUALITY
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WEDNESDAY, FEBRUARY 23, 2000
United States Senate,
Committee on Agriculture, Nutrition, and Forestry,
Washington, DC.
The Committee met, pursuant to notice, at 9:02 a.m., in
room SR-332, Russell Senate Office Building, Hon. Richard
Lugar, (Chairman of the Committee), presiding.
Present or submitting a statement: Senators Lugar,
Coverdell, Fitzgerald, Harkin, Baucus, and Lincoln.
OPENING STATEMENT OF HON. RICHARD G. LUGAR, A U.S. SENATOR FROM
INDIANA, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND
FORESTRY
The Chairman. This hearing of the Senate Agriculture
Committee is called to order.
Before we commence our hearing on the issues before us this
morning, the chair would like to announce, before we get into
those issues, some of the pending business of the Committee in
coming days. Members of staff will hopefully inform senators
who are not here and those of the press who are following these
issues may want these heads-ups.
The Crop Insurance Risk Management mark-up will occur on
March 2, which is a week from tomorrow, and that day of mark-up
may very well include consideration of Senator Allard's bill on
interstate shipment of birds in the cockfighting situation. We
may also consider approval of a Texas watershed project.
Because of the size of the Federal contributions, it requires
at least some scrutiny and thought by our committee.
The issue of interstate shipment of state-inspected meat
will not be considered during the mark-up of March 2, but we
will have a hearing scheduled on that matter. A number of
senators wish to be heard, as do other parties. So, as opposed
to a more immediate action by the Committee, we will have a
hearing in the near time frame.
In January, after a hearing which we had on consolidation,
I wrote a letter to the Justice Department which conveyed many
of the themes of that hearing, asking for their clarification.
Specifically, we asked about the Hart-Scott-Rodino premerger
applications filed over the last 5-years, a five-year trend
line of useful resources, both financial and personnel, which
the Antitrust Division has allocated to these agribusiness
cases, allocation and use of the premerger fee and a number of
issues of this variety. We are advised that the Justice
Department will respond now within the next 10-days. So for
those following the consolidation merger issue, that will be a
timely response and we will proceed from there.
Finally, I would mention that there is interest in the
Committee on the soybean sign up, which of course came about in
the farm legislation of last year. We are advised that the sign
up will continue until March 31. Once the sign up period is
complete, USDA will determine the exact payment amounts for
each producer who has signed up. Currently it is estimated that
a producer with about 100 acres of soybeans would receive a
check approximately of $333 if all 850,000 soybean producers
sign up. So this is still pending, an aspect of unfinished
business from the last farm bill.
I will give a short opening statement. Senator Thomas has
asked to be heard and if he appears, he will then give a
statement just after mine. Then we will have a distinguished
administration panel for extended testimony following that, and
then finally a panel of states and local industry witnesses.
The Committee meets today to discuss the issue of water
quality as it pertains to agriculture and forestry. Our
particular focus this morning is the Environment Protection
Agency's proposed changes with regard to the Total Maximum
Daily Load Program and the subsequent changes in the National
Pollutant Discharge Elimination Systems Program. Many in the
agriculture and forestry community have concerns about how
these proposed regulations will affect their businesses, as
well as their involvement in ongoing watershed restoration.
Under the Clean Water Act, states have utilized voluntary
programs and approaches to protect water quality. We want to
hear today about the effectiveness of this approach. The states
are concerned that the proposed EPA regulations represent a
major significant shift away from historic voluntary and
collaborative efforts toward watershed-based approaches. These
collaborative watershed strategies are the basis for voluntary
incentive-based solutions to control nonpoint source pollution.
State water quality agencies, the Defense Department's
Clean Water Act Services Steering Committee, the Department of
Agriculture and the United States Chamber of Commerce,
representing more than 3-million U.S. businesses, along with
many forestry and agricultural groups, question EPA's proposed
revisions. They claim the proposals would exceed EPA's
authority, undermine states' rights, and impose exceptional
costs and impede economic development.
We also want to address today EPA's legal authority to
regulate nonpoint source pollution. The Congressional Research
Service, in a legal memo prepared for the Agriculture
Committee, has stated it does not appear that EPA has legal
authority to regulate nonpoint sources under the Clean Water
Act. EPA appeared to concede this point at a House hearing last
week, but we shall hear more about that this morning.
Meanwhile, the water quality challenges remain, and
agriculture and forestry's downstream neighbors will, with
justification, expect progress. The question then is how can we
best work together to improve our nation's water quality? Is it
best done by command and control or by further commitment to
incentive-based watershed approaches, which may not have had
either the time or the investment to work thus far?
This Committee has offered leadership on incentives for
water quality efforts. The 1996 farm bill was one of the most
environmentally responsive and responsible farm bills in our
nation's history. It included the Environmental Quality
Incentives Program [EQIP]. Senator Leahy and I were co-authors
of that in a bipartisan push.
Now, this is a highly successful program that is targeted
to states with environmentally sensitive areas. EQIP provides
producers with flexibility needed to address nonpoint source
problems, which vary within a state, from state to state and
from watershed to watershed. These problems can also vary from
season to season and from year to year. nonpoint source
pollution is very site-specific and EPA should incorporate
maximum flexibility into any revision of the proposed
regulations.
It is my hope that this hearing, in addition to being a
forum for the airing of concerns about these particular
proposed rules, will also be the start of a dialogue on how we
can make progress in an incentive-based system to address water
quality challenges associated with agriculture and forestry.
This may involve more funding for our nonpoint source programs,
such as EQIP, the Wetland Reserve Program, and the Conservation
Reserve Program. We should also examine how to increase the use
of other market-based approaches. It is through a combination
of well-funded and innovative strategies that we will best
address agriculture's water quality challenges.
[The prepared statement of Senator Lugar can be found in
the appendix on page 54.]
I note the presence of the distinguished senator from
Wyoming, Senator Thomas. Would you please approach the podium
and we look forward to your testimony, as always, Craig. You
are a good friend of the Committee.
STATEMENT OF HON. CRAIG THOMAS, A U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you, Mr. Chairman. I appreciate the
opportunity to be here. I appreciate the Committee holding this
hearing and allowing me the opportunity to participate.
I applaud the Committee for examining how the Environmental
Protection Agency [EPA] actions will impact agriculture
producers and foresters. EPA's water quality proposal of total
maximum daily loads [TMDLs], is an issue of great concern to me
and to people in Wyoming and, I am sure, also of this
Committee.
The most pressing threat considered by our farmers and
ranchers in Wyoming is not the commodity price or market
concentration as much as it is being regulated out of business.
As a member of the Environment and Public Works Committee,
which has jurisdiction over the Clean Water Act, we have
followed the administration's executive order initiating the
Clean Water Action Plan. Many of us strongly are concerned and
opposed to the use of executive orders to launch efforts as
broad and far-reaching as the Clean Water Action Plan,
essentially one-hundred-eleven ``key actions'' affecting
Federal agencies, state and local governments. Several of these
key actions are incorporated into the TMDL proposal, including
key action number forty-three, restoration through enforcement,
key action seventy-one, anti-degradation guidance for pollution
run-off, and key action number seventy-six, link total maximum
daily loads to air disposition.
Since the Clean Water Act leaves nonpoint sources largely
unregulated, it is our responsibility to ensure that the action
plan does not become a mechanism for agencies to overstep their
statutory authority. However, based on how EPA has revamped the
TMDL program, their actions explicitly seek to bypass the
Congress.
Congress has spoken on how nonpoint source pollution should
be addressed in the 1972 passage of the Clean Water Act and
again in 1987 with respective amendments. Congress specifically
limited EPA's authority to covering pollution stemming from
point sources. Moreover, Congress created the TMDL program to
reduce water impairment problems caused by point sources, and
an alternative approach was taken for nonpoint source
pollution, one focussed on voluntary and incentive-based
measures.
Over the past 2-years, I have challenged the statutory
authority of EPA to regulate run-off pollution for nonpoint
sources. The EPA has responded by stating that Congress did not
expressly prohibit the Agency from regulating nonpoint source
pollution. Mr. Chairman, we have nonpoint source programs in
place that have achieved significant environmental benefits and
should be duly credited.
I firmly believe that Congress should stop this aggressive
and unwarranted approach. If EPA wants to make program changes,
the Agency should work with the Congress. I assure you the EPW
Committee would not have endorsed this type of top-down
prescriptive plan.
None of us disagree with the importance of improving our
nation's water resources, of course. Nor would we disagree that
some nonpoint pollution sources are impairing water bodies.
However, we do not have sound water quality data that would
provide an accurate portrayal of water bodies impaired by
nonpoint source pollution. Unfortunately, what EPA and many
states are using--nonquantitative assessments--are subjective
evaluations. Without using sound, creditable science to assess
the health of our waters, we can be sure this initiative and
the taxpayers dollars will be questioned. Will they, in fact,
reduce pollution?
Instead of forcing such an immense program on our states, I
propose EPA would first accurately identify the problem. After
collecting scientific data, if nonpoint sources are found to be
a significant obstacle to clean water, I would urge the
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.
I believe the letter Under Secretary James Lyons sent to
Administrator Browner could not have been more accurate in
articulating how the EPA rules would adversely affect
agricultural producers and foresters. Attempting to regulate
agricultural and silvicultural activities in the same manner as
point sources demonstrates a lack of understanding or a
complete disregard for the industry's production practices.
I am disappointed to see USDA abandoning its position on
the proposed rule. USDA, through its Natural Resource
Conservation Service, has done a commendable job, as a matter
of fact, in reducing run-off and improving water quality with
their limited resources. It is frustrating to watch the
department fail to defend its own programs but instead,
apparently sort of cave in to political pressure. Certainly if
funding for nonpoint source programs was given as high a
priority as point source programs, it is safe to say there
would be a vast improvement in the quality of water.
More importantly, through NRCS's functions in a facilitory
role with producers by providing on-the-ground technical
assistance, these people have formed true partnerships with
producers to resolve water impairment problems. But the EPA
believes improved water quality is best achieved through
regulation.
It is my strong belief these types of problems are more
effectively addressed at local and state levels, rather than
through the Federal mandates. Certainly we all have a
responsibility to improve the water quality. The question is
the approach and how do we approach the problem without placing
an unfunded mandate on our states and landowners?
So, Mr. Chairman, that is the point of view that I hold and
have expressed in other committees and thank you very much for
the opportunity of sharing those views here with you.
The Chairman. Well, we thank you for coming to the
Committee to make that presentation.
I will call upon Senator Harkin, first of all if he has
questions of Senator Thomas and, if not, we will excuse Senator
Thomas and Senator Harkin then will proceed with his opening
statement.
Senator Thomas. Thank you, Sir. I appreciate it.
Senator Harkin. Thank you. I have no questions. I just want
to thank my colleague for coming and testifying and for his
long-time interest in water quality. I appreciate it very much,
Craig.
The Chairman. Thank you.
Senator Harkin?
STATEMENT OF THE HON. TOM HARKIN, A U.S. SENATOR FROM IOWA,
RANKING MEMBER, COMMITTEE ON AGRICULTURE, NUTRITION, AND
FORESTRY
Senator Harkin. Thank you very much, Mr. Chairman. I
apologize for being slightly late. I again ask that my full
statement be made a part of the record.
The Chairman. It will be published in full.
Senator Harkin. I just want to thank you for holding these
hearings. It is a very critical issue. We are facing some very
critical problems in water quality in Iowa. It has been
estimated that about 20,000 or about 40-percent of our waters
are impaired. I am sorry; about 150-waters in Iowa are listed
as impaired; about 20,000 nationwide or about 40-percent of the
total.
We established the Clean Water Act 25-years ago. Great
strides have been made but it is obvious from even the most
casual observer that we have a long way to go.
I am again pleased to see that our director of EPA, Carol
Browner, is here, our distinguished Secretary of Agriculture,
and I also want to point out that I think one of the foremost
experts in this whole area is with us today, Mr. Paul Johnson,
who is director of the Iowa Department of Natural Resources. He
is former chief of the USDA's Natural Resource Conservation
Service. He is a former state representative and a long-time,
well-known conservationist throughout the Nation, again also a
long-time personal friend.
I just wanted to make those opening statements, Mr.
Chairman. This is an issue that again I think a lot of people
thought we just passed the Clean Water Act and we could move
on. But there are all new sources of pollutants and nutrients
entering our water that we had not anticipated 25-years ago.
I believe we have to come up with comprehensive new
approaches to some of these point source and nonpoint source
pollutions. I believe we have to put more incentives in for
farmers to practice better conservation practices. That is why
I have introduced the Conservation Security Program that would
provide direct payments to farmers on a voluntary basis to
encourage them to practice better conservation methodologies.
I think the voluntary approach is one that has worked in
the past with the Water Quality Improvement EQIP program. Both
of them have shown their worth. And, I think this is going to
be one very major element.
The second is to provide, I think, some national standards
for run-off from some of our large feedlots. We still have a
patchwork quilt from state to state and area to area as to what
we are allowing in terms of run-off from these large
confinement operations.
I have been watching the growth of these large animal
feeding operations and they use the word ``confinement.'' I
think that is a pretty loose term. They do not really confine
the run-off that much and we are seeing a lot of it polluting
our waterways, our underground water, some of our underground
wells, and I think we are going to need some national standards
on that, which we still do not have.
So those are just my thoughts on that. Again, Mr. Chairman,
I appreciate your having the hearing and again ask that my
statement be made a part of the record.
The Chairman. Thank you very much, Senator Harkin.
Senator Lincoln, do you have an opening comment?
STATEMENT OF THE HON. BLANCHE LINCOLN, A U.S. SENATOR FROM
ARKANSAS
Senator Lincoln. I do, Mr. Chairman. Thank you so much and
thank you for allowing us to have this hearing today.
I will really cut right to the point. In this issue, as it
has evolved in my state, it just does not seem to make a whole
lot of common sense to add an unnecessary regulation on our
nation's private landowners, who are already conducting
responsible harvesting of their own private timber. And this is
in regard obviously to the timber industry. I know you have
been talking about some of the agricultural aspects of it, as
well. It is not economically sound and it is not good for the
environment we are seeking to protect.
There are already many, many state and Federal regulations,
as well as best management practice guidelines in place, to
limit and control nonpoint sources of pollution. I fully
support the Best management practice(s) [BMP] guidelines
already instituted in many industries across the Nation and
especially in our private forestry industry and think we should
be promoting them as much as possible.
In fact, I believe I am correct in saying that the
Environmental Protection Agency supports these programs, as
well. They have approved forestry BMP programs in Arkansas and
in many other states as an acceptable solution to the problems
of nonpoint source pollution. They have been working
effectively in our state and in many other states.
In Arkansas over 85-percent of our private forest
landowners voluntarily follow these BMPs to strictly limit and
in many instances eliminate the discharge of pollutants from
forestry activities. I just would like to reiterate that point.
Eighty-five percent of Arkansas's private landowners are
voluntarily spending time and money to ensure that when they
harvest their timber, they do not unnecessarily disturb or harm
the environment. That is a pretty good track record--85-percent
participation on a voluntary basis.
It simply makes sense to do so. I mean after all, they have
to live on that land and drink the water, too. So they are
interested in making sure that they are preserving and
operating under good conservation measures.
I have introduced a bill that takes these facts into
account. My bill, S. 2041, promotes the continued voluntary
implementation of BMPs by eliminating any potential new Federal
regulatory burden from being placed on private forest
landowners.
Many silviculture activities that benefit the environment,
such as conducting responsible harvesting and thinning,
voluntarily following best management practices, and promoting
reforestation, will actually be discouraged by the proposed
regulations.
I wish we did not have to resort to legislation to
statutorily enforce what the Congress originally intended in
the Clean Water Act, that the EPA has jurisdiction over point
sources of pollutants but not nonpoint sources. But, Mr.
Chairman, it seems that we have no other choice or that this is
one action we have to take in order to find a resolution
elsewhere. Simply put, my bill statutorily exempts forestry
nonpoint sources of pollutants from the EPA's point source
regulations.
Having said all that, I want to reiterate that I want to
find a sensible solution to the problems of maintaining clean
water. I have introduced my bill to statutorily ensure that
forestry sources of nonpoint pollution remain so and there
should be an easier way to go about this.
Certainly we can come up with a better solution than to
have to step in and statutorily limit the EPA's authority. I
think it has been shown through the good work of the forestry
industry what they have done with the BMPs, that we can reach
the goal of maintaining clean water through education and
implementation of voluntary programs for nonpoint sources and
not through mandatory permitting for nonpoint sources of
pollution. Why would we want to implement what has been
described at best as a confusing, unpredictable extension of
the TMDL regulations?
The Arkansas Department of Environmental Quality, which I
might add has full EPA delegation for all of its water
permitting programs in Arkansas, has stated publicly that they
do not have the capability or the manpower to implement these
new TMDL regulations. Furthermore, they have also negotiated
with the EPA and the forestry industry to create an agreement
on implementing nonpoint source pollutant controls.
I would just like to restate that the state of Arkansas has
an EPA-approved method of limiting nonpoint sources of water
pollution. I would think that, that would be enough for us. I
would hope that it could be. In trying to encourage, as oppose
to mandating what we want to see happen in terms of
conservation, it is certainly going to, in the long term, come
up with better results.
To exacerbate things, there is a lawsuit currently pending
in Arkansas by the Sierra Club that would expand Arkansas's
303(d) listed waters to around one-hundred-ninety waters. That
would almost quadruple Arkansas's current fifty-one-stream
segments on the 303(d) list covering eighteen different rivers
and streams. So it would seem to me that this lawsuit, along
with this regulation, would essentially require a point source
water permit for normal timber operations over almost our
entire state of Arkansas. This just seems to be a bit
excessive. It does to me and I hope that others with EPA and
the Department of Agriculture and the Chairman and my
colleagues might see some of that excessiveness so that we
could come about with a solution.
Mr. Chairman, I am sorry to have taken so much time and I
will finish by saying that I agree that we need to do all that
we can to ensure that our nation's waters remain clean and
usable for many generations to come. I am a mother, as well,
and I want to see that happen for my children, too. But I do
not believe that attempting to regulate nonpoint sources of
pollutants as a point source is the way to do that. Simply
requiring point source permits for nonpoint sources of
pollutants will do nothing but overburden the state and Federal
regulatory agencies, as well as the farmers and foresters
required to follow the new regulations.
In the end, Mr. Chairman, these new rules get us nowhere
closer to a cleaner environment than we would get from a
voluntary program. They become unnecessary and certainly
unreasonable in the entire scheme of what we are trying to
accomplish.
So thank you, Mr. Chairman, for holding the hearing and I
appreciate and look forward to visiting with my colleagues who
will be witnesses and testifying. Thank you.
The Chairman. Thank you very much, Senator Lincoln.
The chair would like to call now our distinguished
witnesses from the administration, first of all, Ms. Carol
Browner, Administrator of the Environmental Protection Agency.
She will be accompanied by the EPA Assistant Administrator for
Water Chuck Fox.
Let me ask Ms. Browner, I am not certain of the
arrangements made with staff. Do you wish to testify by
yourself or would it be permissible to have the Secretary of
Agriculture--in that case I will call the Secretary of
Agriculture simultaneously. Deputy Secretary Richard Rominger,
as often is the case, is accompanying him, and the Under
Secretary for Natural Resources and Environment James Lyons.
Let me just take this moment to say that the last time we
were all assembled, as I recall, was at the USDA. It was a
summer program involving the President of the United States and
on that occasion he was generous in commending an article which
James Woolsey, former Director of the CIA and I had written for
Foreign Affairs Magazine of a year ago January in which we, in
essence, said that OPEC might strike again and that we really
ought to try to take some thoughtfulness about biomass
research. Our committee has taken favorable action on that
bill. We are hopeful the Senate as a whole may do so soon
because this does offer an avenue, not for a solution of the
current problem or the future ones that may be before us, but a
significant way in which the agricultural and environmental
communities, both parties, the President and the Congress could
participate in a constructive solution.
So I appreciated your asking me to be with you on that
occasion and we are grateful that you are with us today.
At this point I would like for you both to testify. Because
your testimony is very important, we will not put a limit on
it. You have had this process before and know that it is
helpful to some extent to summarize your comments because I
know there will be questions and maybe even some dialogue
between the two of you.
First of all, Administrator Browner.
STATEMENT OF CAROL BROWNER, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY, WASHINGTON, DC., ACCOMPANIED BY CHUCK FOX,
ASSISTANT ADMINISTRATOR FOR WATER, ENVIRONMENTAL PROTECTION
AGENCY
Ms. Browner. Thank you, Mr. Chairman and members of the
Committee. We are very pleased to be here today. I am
particularly pleased to be joined by Secretary Glickman and his
colleagues, with whom we work very closely on any number of
important issues, issues important to the agricultural
community, the forestry community, and environmental and public
health protections for the people of this country.
We appreciate the opportunity to talk to you about what we
believe is one of the most important steps that we can take to
ensure the goals of the Clean Water Act, actually goals that
were anticipated by the Congress in a bipartisan manner almost
30-years ago now. Those goals, quite simply put, were to ensure
that the people of this country would have clean water, they
would have water that is drinkable, fishable and swimmable.
We have made a lot of progress and it is progress we should
all be very, very pleased with. When the Clean Water Act was
first passed in 1972 and working with this committee and other
members of the Congress over the last 7-years, we have made
tremendous progress. Behind us are the days of rivers catching
on fire, of lakes dying slowly. Today, without a doubt, our
waters are cleaner, thanks to a team effort--Federal, state,
local governments working with industries, individual stewards
of the land, farmers, ranchers and forest managers.
But it does not mean that all of our problems have been
solved. An overwhelming majority of Americans--218-million--
still live within 10-miles of a polluted water body. Over
20,000 water bodies do not meet water quality standards,
standards that have frequently been set by the state
government. We certainly still have work to do and, Mr.
Chairman, I appreciate your comments and other members of this
committee recognizing that there is still work that remains to
be done.
As we all know, the proposed revisions to the water
pollution control program that EPA has put forward were
designed to help us solve the remaining water quality
challenges and problems that we face. The program is called the
TMDL program and I think everyone knows but I think it is worth
reminding all of us what TMDL stands for--total maximum daily
load.
As a practical matter, what a TMDL is, is a pollutant
budget for a specific river, lake or stream. It looks at the
individual river. Not all rivers are treated the same but
individual rivers, individual lakes, individual streams, and it
determines how much more pollution needs to be removed from
that river, lake or stream to ensure that water quality
standards are met. It is a very, very sensible way to do the
final work necessary to ensure clean water for all people in
this country. A TMDL is essentially a quantitative measure of
what it takes to achieve water quality goals.
The TMDL program is led by states and communities because
they are in the best position to make the decisions as to how
to reduce the remaining pollution, how best to achieve the
water quality standards and the water quality goals.
The proposal which EPA put out was many, many years in
development. While the public comment period has closed
recently, we have not yet made any final decisions. And Mr.
Chairman, again let me thank you for calling this hearing at
this point. This is extremely valuable to us as we review all
of the comments we have received, as we continue in the
dialogue with USDA and others. And we do hope to finalize this
proposal sometime this summer.
Let me give you my personal assurances that we are going to
do everything we can to incorporate many of the ideas that we
have heard from these hearings so that we can produce a program
that will best serve the interests of all of the American
people.
Now the concept of TMDLs or the concept of a quantitative
approach is not untested. Recent history tells us that the
quantitative approach will, in fact, achieve significant
results. I just want to give you one example. I have others,
but let me give you one example--the Great Lakes.
In the late 1970s our fresh water treasure known as the
Great Lakes were in tremendous danger. That was widely
accepted, both in the Great Lake states but across the country.
And so our Nation, our friends in Canada, the Great Lake
states, we all came together and we developed quantitative
pollution targets. How much pollution did we need to get out of
the Great Lakes to restore the Great Lakes?--very, very similar
to what a state would do in a TMDL program.
What has happened? The Great Lakes are absolutely on the
rebound. We have a plan. We are working in partnership with
states, with communities, with industry, with farmers, and the
Great Lakes are on the rebound. Similar efforts are reviewing
the Chesapeake Bay, the Long Island Sound.
Successes like these led EPA to convene an advisory
committee several years ago to take a hard look at the TMDL
program and to develop recommendations for improving it, to
look at what we had learned and to see if we could not
incorporate those tools, that knowledge, into a program that
other states could then take advantage of.
The advisory group was a diverse group and I will tell you
something--they did not agree on everything. There was lots of
discussion, lots of different points of view. But it is their
recommendations that formed the basis for the program proposed
by EPA last summer.
Mr. Chairman, I look forward to discussing with you and the
members of the Committee these changes in more detail, but let
me just say one thing in closing. This proposal was intended to
honor and reflect what makes this program so effective to begin
with. And, as Senator Lincoln pointed out, it is the work of
the states that has made this program so successful thus far.
Nothing in our proposal should be construed to change that and
if it has created that impression, then we will fix it because
we know that this work, at the end of the day, will best be
done state by state.
When we finalize this program this summer, I think it will
be very clear to make sure that everyone understands what the
program will not include. Very quickly, our proposal, nor will
the final program require a Clean Water Act permit for nonpoint
sources of pollution. Let me say that again. No Clean Water Act
permit for nonpoint sources of pollution. This means that there
will not be a Clean Water Act permit for the vast majority of
silviculture operations--not all, but the vast majority. It
will not create a program run out of Washington. It will allow
the states to set the goals, to write the plan, to implement
the plan.
Finally, let me mention that the administration does have a
budget pending before Congress that seeks additional funds for
the states, as Senator Thomas spoke to the need for funding. We
are specifically asking in the EPA budget for an increase of
$45 million for TMDL development by the states. This would be a
base of $110 million, so a significant increase in funding for
the states.
In addition, we are seeking an increase in nonpoint source
pollution grants of $50 million on a base of $200 million,
again money for the states. Mr. Chairman, you have our
commitment that we will work with all parties as we seek to
finalize this program.
The 1972 Clean Water Act set an ambitious national goal of
fishable and swimmable. We can achieve it by working together.
Thank you.
[The prepared statement of Ms. Browner can be found in the
appendix on page 56.]
The Chairman. Thank you very much, Administrator Browner.
Secretary Glickman.
STATEMENT OF HON. DAN GLICKMAN, SECRETARY, UNITED STATES
DEPARTMENT OF AGRICULTURE, WASHINGTON, DC., ACCOMPANIED BY
RICHARD ROMINGER, DEPUTY SECRETARY OF AGRICULTURE; AND JIM
LYONS, UNDER SECRETARY OF AGRICULTURE FOR NATURAL RESOURCES AND
ENVIRONMENT
Secretary Glickman. Thank you, Mr. Chairman, Senator
Harkin, Senator Lincoln. I want to thank you for inviting USDA
to appear, along with my colleague Carol Browner. With me,
today are, if Deputy Secretary Rominger and Under Secretary Jim
Lyons.
We share EPA's commitment to cleaning the waters of the
U.S. and building on successes reducing water pollution over
the past several decades. But to some degree, those
accomplishments were the easy part. The remaining pollution
concerns, as highlighted in the President's Clean Water Action
Plan which Administrator Browner and I helped to prepare, are
so-called nonpoint sources of pollution such as soil erosion,
urban run-off, pollutants from animal feeding operations and
other sources that do not come from a single, simply-identified
source. Addressing these nonpoint sources of pollution is the
great challenge that remains to further improve our waters to
make them fishable, swimmable, and potable.
To accomplish these next steps in cleaning our waters will
take a concerted effort from farmers, ranchers, and forest
landowners, as well as urban and suburban residents.
Notwithstanding all the work that remains, farmers, ranchers,
and foresters have been working for years to reduce the effects
of their operations on water quality. Much has been done in
this regard using many of the conservation tools that Congress
and the department wrote into the previous three farm bills.
I do not have to restate them all but we have the
Conservation Reserve Program, the Wetlands Reserve Program, and
the Conservation Reserve Enhancement Program. They have helped
improve the waters of Chesapeake Bay, salmon habitat in Oregon
and Washington, and drinking water supplies for New York City.
The President's budget has requested $1.3 billion above
currently authorized levels to bolster our agriculture
conservation programs.
I am proud of agriculture's and forestry's contributions to
the Nation's efforts to clean our waters, while recognizing
that we can and should do more. The question is how should we
proceed with our efforts to reduce nonpoint source pollution
and what additional tools are needed to realize further gains?
I believe we must proceed carefully and thoughtfully. As
you know, American farmers and ranchers have for the last 3-
years suffered from rock-bottom prices, shrinking global
demand, record worldwide production, and a slew of natural
disasters. Simply put, as you know, Mr. Chairman and so does
Senator Harkin and Senator Lincoln, farmers are under
extraordinary financial distress right now and more than ever,
they need clear and understandable information about how any
new proposed regulation might affect their operation.
The proposed rules are for some folks confusing, and in the
agriculture community we have heard that--they are confusing.
The language of the draft rule is complex and frankly, it would
present a challenge to any expert on the issue. By its very
nature, these rules are complicated because they deal with
technical aspects of pollution control.
But first and foremost, farmers need a clear statement of
how the proposed rule would affect them. Farmers demand clarity
and I think they can deal with a lot of things but what they do
not need is more uncertainty out there. And I think this is
something that Carol and I are working on very, very closely
and she understands that better than almost anybody else that I
know.
I do want to clarify the situation regarding the
department's position on these proposed rules. On October 22,
1999, Under Secretary Lyons sent a letter to Administrator
Browner commenting on EPA's proposed rules. Senator Thomas
referred to that. The letter had not, however, gone through
departmental clearance. And, more importantly, I never reviewed
it.
Accordingly, it does not represent USDA's official
position. Now I will be talking about the content of the
letter, which I generally agree with, but the fact is that
substantively, that letter did not go through our formal
clearence process. And I would have sent a different tone if I
had seen that letter.
The fact is that we are working together--USDA and EPA--on
this issue very closely. Some are using the letter to drive a
wedge between USDA and EPA on the issue and the letter unfairly
questioned the EPA's interpretation of its own legal
authorities. Let me make clear: I have enough problem with
USDA's legal authorities, let alone to comment on EPA's legal
authorities, particularly as they relate to that agency, which
has been charged by Congress to implement the Clean Water Act.
So that is something that in the letter I just thought was
inappropriate and I thought I would mention it to you.
I do have concerns about the proposed rule but I believe
adjustments can be made without undermining the intent or the
letter of the law. We have formed an interagency group with EPA
to work through our concerns. The group has been meeting
regularly. It is making progress and I want to make it clear
that EPA has been more than willing to work with USDA in
dealing with the problems that we are raising and I will talk
about today a little bit.
For example, number one, and Senator Lincoln talked about
this, I believe the rules should recognize the best management
practices of America's farmers and ranchers and give necessary
credit to those best management practices in the rule. I think
the rule should be more clearly constructed and minimize
adverse effects, where possible, on agricultural and
silvicultural operations. And third, it should allow for
reasonable time frames for planning and implementation.
I want to take a moment to summarize our major concerns.
First, the rules should recognize the voluntary conservation
efforts farmers and ranchers and timber companies are
practicing on the land. The rule should clarify that a farmer's
best management practices, such as a streamside buffer on farm
and forest land, will be taken into account when determining
how to best meet clean water standards. The fact is over the
years, the Natural Resources Conservation Service [NRCS], and
other agencies within USDA have been spending millions of
people-hours and hundreds of millions of dollars to help
farmers and ranchers and foresters do the best job they can to
make sure that the soil and water is protected, and those
efforts have produced profound positive effects on the country
and the landscape. And these practices, which continue with the
technical assistance of NRCS, must be continued.
I do not want to see farmers confused into believing that
those practices would become subordinate to a regulatory
approach, except maybe on the most dire circumstances where
nothing is being done by anybody.
Second, the EPA should provide comprehensive cost
projections of the impact of the proposed rule on agriculture
and silviculture.
Third, the rule should clarify if and when the process
would apply to discharges from silvicultural activities. USDA
and NRCS knows what works well in implementing, especially the
Forest Services does, what works well in implementing TMDLs in
forested watersheds and the rules should reflect our field
experience. USDA's partnerships have shown that an adaptive and
collaborative TMDL process that relies on best management
practices and monitoring often has the best chance of
efficiently attaining water quality standards.
What we have found over the last 50- or 60-years is by
actually working with people, giving them the technical
assistance and the resources, they will actually do the best
job of anybody in maintaining their land.
Finally, we are concerned about the science being used in
assessing and attributing the effects of nonpoint source
pollution. Theoretical models have a high level of uncertainty
and there are gaps in the data regarding what is natural
background pollution versus what is caused by human actions. So
these are issues that we need to work very, very closely
together on in order to create rules which are clear and
science-based.
We believe education and partnerships are going to play
decisive roles in efforts to improve water quality. The
proposed rule should be fair, clear, and provide farmers
particularly with great certainty. With this in mind, we are
diligently working with the EPA to resolve our concerns and I
am confident, in fact, that we can do this.
So Mr. Chairman, I thank you for this opportunity to appear
before your committee and we look forward to your questions.
[The prepared statement of Secretary Glickman can be found
in the appendix on page 74.]
The Chairman. Well, thank you very much, Secretary
Glickman.
Ms. Browner, let me make a comment, to be followed by a
question on the legal authority issue that I raised in my
opening comments. This comes, and I always hate to reduce these
arguments to anecdotal, almost parochial situations, but
Senator Lincoln has raised this in her testimony, as have
others.
During this winter season we have harvested on our farms
some poplar trees that apparently were in the way of what we
thought were higher value trees. Most people in Indiana know
that, that we are interested in this, so when these activities
come I have seen forestry people from all over our state who
know that I am involved in the business and believe we ought to
be concerned about this.
The thing that caught their concern especially was this
issue that you raise, that most people in silviculture would
not be affected by that. Yet in a hearing in the New England
EPA Region I at Concord, New Hampshire on December 17, Mr.
Kraft said that ``Ultimately, it will be left to the states,
but we would have to approach each request for a permit to
conduct a logging or logging-related activity to assure it
wouldn't harm the water.'' That was very site-specific and
rather inclusive.
As a followup, in a more general case, essentially some
have cited the 1977 DC. Circuit Court opinion of National Rural
Development Council [NRDC] versus Costle in which the ruling
was that EPA has no authority to pick and choose which point
sources to regulate based on whether they are significant
contributors. That is a problem. In a way, Mr. Kraft, whether
he was right or wrong, was consistent apparently with the 1977
case and, quite frankly, this is what drives much of this
argument.
One of the reasons we are having the hearings is not only
the problems that Senator Thomas raised, and he has some very
large foresters. Western state problems are very, very
substantial. But in Indiana, we do not have very many large
foresters. Maybe Senator Lincoln has some of both, for all that
I know. But in any event, this general discussion has struck
some fear in the hearts of almost everybody if you have five
acres or upward if you are talking about everyone and the
inability of EPA to pick and choose, despite the assurances you
have given.
So with all of that build-up, what do you have to say about
the illegal authority? How can you pick and choose? What
reassurances can you give to foresters all over the country of
various sizes?
Ms. Browner. First of all, as Senator Lincoln pointed out,
the vast majority of states today run the clean water program
on a day to day basis in their state. We are not involved on a
day to day basis. We are not involved in permitting decisions
on a day to day basis. Nothing in this proposal changes that.
States would continue to do the job that they have been doing.
The TMDL is an opportunity for a state to develop a plan
that reduces the remaining pollution that needs to be reduced.
It is up to the state to decide where those cost-effective
reductions can be found. We have tried to be clear, and I am
now completely convinced that we have failed to be clear, but
we tried to be clear that when a state develops a plan, a TMDL
plan, they could give credit for BMPs for voluntary--I will
read you the language--``voluntary and incentive-based actions
may also be acceptable measures of reasonable assurances,'' and
it goes on and on. This is in the Federal Register. This is
what we said when the proposal went out.
So in other words, as a state develops a plan and they know
they have to get so many pounds of nitrogen out of the water,
out of the stream to make it healthy, they go back and they
look at the sources of nitrogen and they say we can get so many
pounds from this industrial source, we can get so many pounds
from another source, and our best management practices among
the forestry efforts in our state will get us this many. No
permit would be required in that instance. They have a plan.
They have reasonable assurances for getting the pollution
reductions. They move forward with implementing the plan.
The vast majority of forestry activities would not require
permits and I want to be the first to say that we think forests
are good for water quality and that we think there are
tremendous things going on across the country already in the
forestry industry that are enhancing water quality.
Can I just give you one example of something that we think
is a great success? The Simpson Northwest Timberlands. EPA and
the State of Washington reached an agreement with the Simpson
Timber Company, a large operation, as I understand it, to
develop and approve a TMDL implementation plan for 250,000-
acres of private forest land, which includes 1,400-miles of
streams. We worked it out. It is doable.
Another example is in the Chesapeake Bay. There were some
very serious problems in the Chesapeake Bay that were occurring
because of some activities upstream. This was actually a
program we did, I think, with the State of Maryland and the
Forest Service to go back in and restore some riparian forest
buffers. And because of this 60-acres of restoration, we are
now getting 4,000-pounds of nitrogen reduction, 500-pounds of
phosphorus and 100-tons of sediment reduction per year.
These are the kinds of best management practices that are
already occurring in the country. You probably have them in
each of your states. This is what we think should occur. We do
not want to do anything that stands in the way of that. And if
our proposal somehow or another has confused people, then we
will fix it because we think that is one of the best tools we
have for cleaner water at this point in time.
The Chairman. Well, it is a critical point and a very
comprehensive and thoughtful answer. As you say, you are still
formulating and you have commended the timeliness of the
hearing to hear what you need to consider, and I think this is
an area which you recognize as really very, very critical,
given the legal precedents as well as the concerns that are
persuasive.
Secretary Glickman, you have mentioned Secretary Lyons'
letter on October 22, and the fact that although you did not
sign off, you share many of the views. My understanding is that
many professionals in USDA were deeply concerned about EPA's
proposals, that Secretary Lyons was not acting simply in a fit
of creativity, that he was sort of bringing those concerns to
the fore.
Secretary Glickman. It was certainly not in a fit, but I do
not know about creativity or not.
The Chairman. Subsequently they have been more broadly
shared. I do not want to berate the issue of why the
consultation and coordination between the two agencies did not
occur perhaps as much as it might have before then. Your
assurance today is that whatever that might have been, it now
is very intense and you both are here today, which we
appreciate.
Secretary Glickman. That is correct.
The Chairman. And that is important. At least in your full
testimony you have stated that EPA should provide a
comprehensive cost projection of the impact of the proposed
TMDL rule on agriculture and silviculture. My concern is that
probably you and the department ought to produce such a thing,
to give at least from the standpoint of American farmers and
ranchers, some idea of what you project the problem is. It
could be a cooperative one but I just sense that those of us
who are involved in the agricultural side of this would like
the views of the professionals from the USDA as to what is
involved as all this hearing record is finally being put
together and we begin to banter this about.
Now, it is not an academic problem. As we have collected
testimony for this hearing, the cost estimates range so widely
as to be almost an astronomical difference, and that is
unsettling in terms of a public policy situation. So without
going into histrionics about how far apart we are, I would just
ask you to zero in on that project.
Likewise, with the Conservation Reserve Program, it would
appear if USDA accepts more than 1.5-million acres through the
recently concluded regular signup, it might encroach on the
water quality acreage reserve. Now, this has been an important
point with the Committee and with you with regard to the
Conservation Reserve Program [CRP] program because the Clean
Water Act Action Plan of 1998 was to hold back 4-million acres
under the CRP enrollment cap for continuous signup.
Now, red flags may be down there at the department sort of
understanding that we are getting close, I think, to the limits
there but would you review that? Give us some assurance that
the plans we already think were in operation that are certainly
pertinent to what we are talking about today are not in the
breach here.
Secretary Glickman. We will. And again this is one of the
concerns that has been expressed by our technical people, that
here we are bidding in a lot of land in problem areas and
taking it out of production for a long time and we do not want
to see those efforts unnecessarily disturbed, and I do not
think they need to be, but that is part of the review process.
The Chairman. One of the reasons that the CRP and the farm
bill's aspect of that, that has been widely commended is that
there were very important point totals given for these
environmental assets that were to be preserved, so this is
another one of those points. You have made proposals elsewhere,
in other fora, about CRP and additional things we might do.
Secretary Glickman. Right.
The Chairman. And I have commended many of those thoughts,
but even at the same time, we do not want to undo that which
seems to be very useful.
Let me, for the sake of the record and my enthusiasm over
Mr. Kraft's testimony, which is about to occur, I gave him the
title of the EPA Administrator Region I. He was not the person
who testified in that region but he does mention that testimony
in his testimony today, so just for the sake of the record I
would like to clear up who said what.
Senator Harkin?
Senator Harkin. Thank you very much, Mr. Chairman.
I will kind of cut to the quick on this perhaps a little
bit in terms of silviculture. There is testimony I read that is
going to be given later by Mr. Adler--I was reading his
testimony and he said obviously the forest industry is fearful
that these new proposed regulations, if implemented, would have
some economic impact on them. He said clearly that is going to
be the case in many instances.
Again it seems to me that when you are talking about
forestry, just as you talk about agriculture, that there can be
point and nonpoint sources of pollution coming from them. I am
wondering if you are thinking in terms of the proposed
regulations as treating all forest operations as point sources
of pollution. I do not know what you are thinking there. Or is
this going to be maybe yes in some cases and no in other cases?
Maybe you could explain that for me a little bit, Ms. Browner.
Ms. Browner. You are exactly right. There are some
activities that generate a point source discharge and there are
other activities which, quite frankly, do not.
The way the statute was set up, and I think the easiest way
to think about it is that EPA, nor the states, can require a
permit for nonpoint source runoff. A permit can be required for
point source, and clearly we would all agree for industry, for
large cities, for stormwater, and for those activities that
significantly contribute to the detriment or the degradation of
a water body.
So it is conceivable, and when we talk about the vast
majority of silviculture activities would not require any kind
of permit, I think we all know there are bad actors. We all
know that, in every industry. It is unfortunate. There are the
leaders, there are the people who are the visionaries, and then
there are the bad actors.
I want to be clear. We are quite sure that there will be
those out there, the bad actors, who are conducting their
business in such a way that it is a point source that is
contributing to the degradation of a stream and therefore the
state can require them to get a permit. We believe that is a
relatively small number of companies and that for the vast
majority, the kind of best management practices that are in
their own interests, that they are already engaged in, will be
what they simply continue to do.
But for nonpoint sources, and we will provide, Mr.
Chairman, with your permission, for the record a letter we sent
to Senator Baucus yesterday in an effort to once again clarify
this, we are very clear for nonpoint sources we cannot require
a Federal permit, period. The Clean Water Act did not give us
that authority. Nor would we be asking for that authority.
[The information referred to can be found in the appendix
on page 245.]
Senator Harkin. I think that outlines and cuts to the quick
of what we are talking about. The only thing that is sort of
left dangling there is definitions. How will you spell out in
the new regulations how you are going to decide what is point
and what is nonpoint? I mean obviously there are the clear
instances we know of.
Ms. Browner. That is right.
Senator Harkin. Then there are some that maybe get into
gray areas. How are you going to provide some distinct lines so
people know whether or not they are engaged in point source-
type activities that could contribute to point source
pollution?
Ms. Browner. I think that your comment is very on target.
It is something we agree that we need to make clearer in the
final program. I think that it is fair to say, and Secretary
Glickman said this is not easy stuff. It will be easy, I think,
out in the field, but what we have to write down to jump
through all of the hoops that we are required to in creating a
program and to try and reflect all of the debate that we heard
makes for very difficult reading. I am the first to admit that.
I think there are several areas where we have heard
repeatedly that we probably could have said it more clearly; we
probably could offer more examples so that the states, when
they develop their programs--I mean let me remind you, and this
is the second point I would simply make--EPA does not write
these. The states go out and write the TMDLs. They decide where
the best place is to get the reductions from. They decide how
much credit they can give to best management practices. That is
done by the states, but clearly we need to give better guidance
to the states on what they should be giving credit for, on what
the definitions are, and I think your point is extremely well
taken and it is something that we need to work with USDA and we
would be happy to work with this committee and others to try
and fix in the coming months.
I think we can fix it. I think we have learned a lot in
these public hearings and it is something we need to fix.
Senator Harkin. I wanted to focus on the forestry issue a
little bit because I think that is really where you are going
to get a lot of the rub on this.
Ms. Browner. Yes.
Senator Harkin. Obviously row crop farmers now are fearing
that wait a minute; if you can broaden this point source
solution that broadly, then maybe they will be affected by it,
too. So I think there is more than a little bit of legitimate
fear from row crop farmers.
Now having said that, to the extent that we can continue
down the road that Secretary Glickman has so courageously, I
think, structured, and that is a combination of different
approaches--the Conservation Reserve Program, extending it
along the boundaries of waterways and making those longer-term-
type permits--I think that is a great way to go. Extending the
strips--I forget what they are called--the waterway strips and
things that you have done in the past----
Secretary Glickman. Buffer strips.
Senator Harkin. Buffer strips--I could not remember the
word--the buffer strips, I think has just done great stuff out
there, and that has been very courageous, to take that step
forward.
Second, implementing the voluntary-type programs. Now, I am
not an expert on forestry. I do not know a lick about it. But
it seems to me that what we have done in terms of the voluntary
programs and what we are trying to do with the large animal
feeding operations might have some applicability over there in
terms of some standards, some national standards that we are
doing in large animal feeding operations but more in terms of
providing incentives for farmers to conduct their own
conservation practices.
I do not know if that is applicable in forestry or not. I
just do not know, but it is working in row crop agriculture.
I appreciate the department's support of the Conservation
Security Program and the money that is in the budget this year
for that. I think that is going to go a long way toward again
helping our nonpoint sources of pollution in row crop.
I am just wondering if there is any such kind of thought in
terms of forestry, the type of incentive-based program in
forestry that would be voluntary and which again would be in
their best interest. I just do not know if that is applicable
to forestry or not.
Secretary Glickman. Under Secretary Lyons may be able to
comment quickly on that.
Mr. Lyons. Senator, we do have similar programs to help
private forest landowners, private nonindustrial forest
landowners in particular, and these are programs actually
authorized, in part, by this committee in the 1990 farm bill.
One is the stewardship program, the Stewardship Incentive
Program, and those programs provide funding to private
landowners to help them put in place conservation practices to
address water quality concerns, wildlife habitat concerns, and
the like.
Unfortunately, those programs have been woefully
underfunded, worse so than the conservation programs. So we
have had a difficult time getting traction, if you will, and
getting those in place. But where they have been put in place,
we have had some substantial success.
Senator Harkin. One last thing, Mr. Chairman. I do not know
if I can stay for the entire hearing but I just wanted to say
that I am sending a letter to both of you today. ``I just
wanted to state that I have strongly supported your agencies'
joint efforts on the unified national strategy on animal
feeding operations.''
``However unfortunately, with the release of the Draft
Guidance Manual and the Draft Comprehensive Nutrient Management
Plans, it appears that USDA and EPA are not fully working
together as partners to develop an enforceable approach to
address the serious issue of impaired waters from feedlots.''
``So I am sending a letter to both of you today outlining
my concern that your current approach would lead to confusing
regulations for large, confined animal feeding operations.''
Again I thought we got off on a great start here a year or
so ago. I thought people were working together but I am
wondering now if we are starting to diverge here on the
regulations that are being developed. As I said, I do not need
a comment. I will send the letter to you and I would appreciate
your responding to it as soon as possible.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Harkin.
Mention has been made of Senator Baucus. He is unavoidably
detained in Montana on pressing business today but he has given
us a statement and his statement will be placed in the record
along with the opening statements of the senators.
[The prepared statement of Senator Baucus can be found in
the appendix on page 80.]
Senator Lincoln?
Senator Lincoln. Thank you, Mr. Chairman, and thanks to the
witnesses, Secretary Glickman and Administrator Browner, for
being willing to come and visit with us, and I appreciate your
offer to work with us on this because perhaps there has been a
great deal of confusion, to the tune of at the first meeting we
had in Arkansas we had 1,500-people show up and the second
meeting we had 3,000-individuals show up.
Well, we are going to have another meeting in March and you
very graciously had your Region-VI EPA folks at the first two
meetings and I would encourage both you and the secretary, if
you could not attend, that you would send someone from
Washington to be in attendance at that next meeting--I think it
is March 7--which would be very appropriate to answer some
questions, because there is a great deal of confusion. I agree
with you that eliminating that confusion is absolutely
essential.
Secretary Glickman mentioned one of the biggest problems
for agricultural producers is uncertainty. The variables that
they had to deal with. The fact is that I think that is the
biggest problem that we have with your regulation, is the
uncertainty and the unpredictability for both agriculture, as
well as forestry.
I concentrate on forestry because the point, in fact, is
forestry has gone certainly in our state a great deal to try
and work with EPA and the PCNE, the other groups, to try and
come up with some really, really far-reaching opportunities to
do best management practices in conservation.
You make the comment repeatedly that these are things that
the states do. I would just add to that, that the states do not
do these, they do not set these regulations, nor do they put
them into effect, unless they get your approval. This is not
something they act on alone. The states do not go in one
direction and EPA in another. When they go through most of
setting these standards, they are things that they do in
conjunction with EPA. It is not just something the states do,
as I said, on their own. So I think it is important to
recognize that.
As we look at what the regs have put forward, maybe if you
could clarify some of the things here, a couple of questions
that I have. One, where you have a situation where you have a
best management practice in place, has there been any
consideration that the regulations would only apply to states
who do not have an EPA-approved best management practices?
Obviously----
Ms. Browner. You are not the first person to raise this and
it is certainly something we are willing to look at. In some
ways it fits back a little bit to Senator Harkin's question in
that what is a best management practice? I think that is
something we would need to work out with the states.
Senator Lincoln. You already you. You approve their plans.
Ms. Browner. We understand that; I understand that. And
that might be one threshold, but you may also have other states
coming forward with new types of best management practices; how
could we incorporate those? So that is something we are willing
to look at.
Senator Lincoln. All I am saying is that in each state you
either approve or disapprove their environmental programs. They
are not acting on their own.
Ms. Browner. I am happy to spend some time explaining to
you what approve or disapprove means. It is not quite as black
and white, I think, as perhaps some may have suggested. It is a
complicated process that we go through in making the decision
to delegate and then in making sure that within a broad program
like clean water or clean air, that all of the components are
working. We would be happy to sit down and walk you through it.
But I think that the basic thrust of what I hear you asking
is in those instances where best management programs have been
approved by EPA, how would we incorporate that into the states?
Or how would we allow the states to incorporate that into the
TMDL program? And I think we are very open to that. We think it
is a good idea. We simply need to work with people to
understand how best to do it.
Senator Lincoln. Well, I just know that if I am trying to
teach something to my children, it is much easier if I teach
them the benefits that they are going to get out of it and help
them work to do it themselves, as opposed to just applying more
demands on them.
I think that in what you have done in the best management
practices has produced an awful lot of goodwill and
conservation and reaching the objectives that we all want to
reach. I would hate to see an unnecessary, overburdensome-type
regulation. And as you clarify it, maybe it will not be that
way, and I hope that is the case, and we would like to work
with you on that.
We would like to just kind of get a few clarifications on
the TMDL regulations that you have put forward. Could the
regulations that you have out there be extended to encompass
all of the activities within the watershed of the listed water
body, or will they be limited to the properties adjacent to the
list water body?
Ms. Browner. I am going to ask Mr. Fox to answer.
Mr. Fox. Senator, the way we have proposed the rule, it
would be limited only to those landowners and those properties
that have a documented water quality problem. In fact, the
Agency, the state or Federal agency, would have to make a
specific finding that there is, in fact, a problem associated
with this landowner. We did not envision at this time that it
would be applied on a watershed basis.
Senator Lincoln. So it is not your intent to apply it to
the watershed basis; is that correct?
Mr. Fox. As we propose it, that is correct.
Senator Lincoln. OK. The regulation as it deals with waters
that are not listed but are considered impaired, will this only
apply to the official 303(d) list of waters?
Ms. Browner. It only applies--maybe your state has some
list that we are not immediately familiar with. This applies to
the 303(d) listed waters.
Senator Lincoln. Only.
Ms. Browner. Some states have their own state processes in
addition to the 303(d) and we would be happy to talk to you
about Arkansas. They may have something that we, off the top of
our heads, do not know. Someone seems to be telling us that,
that may be the case. But the intention is 303(d).
Senator Lincoln. Your intent is to focus on a 303(d) list.
OK. Well, I might want some more clarification on that if it is
possible.
Just in talking about the point and the nonpoint sources
and, as Senator Harkin mentioned, those definitions, in reading
your proposed rule and noting that you specifically go back to
or specify that certainly agriculture was not focussed in on in
terms of definitions until 1977 and 1987, where the specifics
on return flows from irrigated agriculture and agriculture
stormwater were specified out statutorily, but you go on down
and when asked which silviculture discharged would be designed
under today's proposal as source subjects to the program, you
state for the sources that were categorically excluded
previously--nursery operations, site preparation, reforestation
and subsequent culture treatment--thinning, prescribed burning,
pest and fire control, harvesting operations, surface drainage
or road construction and maintenance--that categorical
exclusion from the definition of point source would be removed.
So in other words, you are leaving it up to a subjective
decision by yourself as to whether or not that is going to be a
point or a nonpoint source?
Ms. Browner. I am going to be very honest with you. We are
having a hard time understanding your question. We are happy to
try and answer it for you but I am happy--I was trying to make
sure I understood which section you were even in and right now
we are a little bit confused.
So Mr. Chairman and Senator Lincoln, if it would be
appropriate, we would happy to answer all of these in writing
or to meet with you individually. You just--I cannot understand
what you are asking me at this particular moment.
Senator Lincoln. Well, I just think it is important for us
to know how you have defined and what you have put yourself in
the position of being discretionary over in terms of point and
nonpoint sources.
Ms. Browner. We do not disagree but I think we need to know
which section you are in so we understand.
Senator Lincoln. OK, I have the Federal Register right here
and it is just your answers that you have submitted from your
regulations in the Federal Register and I will be glad to offer
that to you and have you answer them in writing.
I would just again encourage us all to work on something
that can be predictable and certain to the individuals that are
dealing with it. I would encourage you to come to some of the
meetings that we are subjected to so that you can give some of
those answers to the people who do feel an uncertainty in what
has been prescribed in the rule and regulation.
So, I think that is very important as we go through this
because there are a lot of people who are alarmed in the
definitions that have been provided and what has been done and
also, I think just in the past history of what EPA has done in
many instances in their interpretations and the way that they
go about interpreting the intent of what Congress is out there
to do. So I would encourage you to work with us, please.
I will, Mr. Chairman, be glad to submit to the
administrator my questions in writing so if she would choose to
answer them in writing, that is fine.
The Chairman. If the senator will put the questions in
writing we will ask the administrator to respond in writing on
due reflection and have clarification.
Ms. Browner. Great. Thank you.
The Chairman. I know that you must leave in just a few
minutes, Administrator Browner, so as a result, I am going to
ask Senator Fitzgerald--he has a couple of questions that he
wants to ask whole both you and Secretary Glickman are here.
Then Mr. Fox, I understand, could continue onward if necessary.
STATEMENT OF HON. PETER G. FITZGERALD, A U.S. SENATOR FROM
ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman.
I appreciate both of you being here and I am wondering with
the Chairman's dispensation, if I could not shift gears just a
little bit. We are so fortunate to have our distinguished
Agriculture Secretary and EPA Administrator on the same panel.
I wondered if I could talk a little bit about the ethanol
program. Administrator Browner, I know you have been kind
enough to meet with members of the Illinois delegation on this
and we are hoping to have a large meeting with House and Senate
members with both of you. I know we sent you a letter. We sent
it actually to the President. Maybe he has not sent it down to
you. But we would love to have that joint meeting. There are
about 40-members from the House and Senate who have requested a
meeting with both of you to discuss the reformulated fuel
program.
But Administrator Browner, I was wondering; I am very
concerned about the viability of ethanol in phase two of the
RFG program. I was wondering whether the EPA is taking any
steps toward providing ethanol with a carbon monoxide credit so
that it could continue to remain the choice oxygenate, at least
in Chicago where it is heavily used and very popular. I do not
know if you would be able to comment on that.
Ms. Browner. Senator Fitzgerald, as I think I shared with
you and the Illinois delegation in I think it was two meetings
we actually had, the administration, EPA was looking at the
issue and Senator Harkin, you are well versed on this issue of
revapor pressure, and that we would be making a proposal in
terms of the revapor pressure in light of a National Academy of
Sciences report.
We had hoped to get that done a little bit sooner than we
have but it is winding its way through the Office of Management
and Budget [OMB] review process and will be shortly put out in
the Federal Register. So, we have taken into account the
Academy's review and all of the issues as we understood them
and we will going out on a notice and comment in terms of the
revapor pressure issue.
Senator Fitzgerald. What you sent to the OMB, I understood
you sent something there regarding regulating MTBE as an
oxygenate. Is that----
Ms. Browner. I am talking about Reid Vapor Pressure [RVP]
right now. I am talking solely about the RVP, which is in the
RFG round two program. That is all I am talking about.
Senator Fitzgerald. OK. Well, I appreciate that and we look
forward to talking to you about that.
Secretary Glickman, I understand the USDA has recently been
assessing the impacts of an MTBE phase-out and ethanol
replacement in the California market and I do not know if you
have any results of that assessment that you might be able to
share with us. I noted in Illinois, ethanol is 16-percent of
the market for our farmers' corn and it is probably not that
high in other corn states--Illinois is the leading ethanol
producer in the country.
But I wonder what effect might that have on farm income at
a time, as you pointed out in your testimony, that prices have
hit rock bottom and farmers have really been suffering across
the country?
Secretary Glickman. I do not have a specific answer. I will
go back and ask our chief economist whether he has done any
economic impact studies. We are working with EPA on the MTBE
issue. Obviously USDA has a great interest in the ethanol issue
for a lot of different reasons, much of which are compatible
with yours.
Senator Fitzgerald. So that study is not yet completed, the
economic study?
Secretary Glickman. Deputy Secretary Rominger will respond.
Mr. Rominger. I do not have the figure with me but I think
our chief economist did complete that study and it did show
that if ethanol did replace MTBE, it would have an effect on
the price of corn.
Senator Fitzgerald. And the farmers' income. And that would
probably, in turn, have effects on the farm programs by
reducing the cost of the loan deficiency payments and the like.
Do you know if that analysis addressed ethanol's ability to
replace--the ethanol industry's ability to replace MTBE in the
California market in 3-years, over 3-years?
Mr. Rominger. I think, as I recall, that the production of
ethanol would have to be increased but they felt that it was
possible, would be possible to increase the production of
ethanol to be able to fill that market.
Senator Fitzgerald. Well, I appreciate that opportunity to
switch gears a little bit.
Administrator Browner, did you want to add something?
Ms. Browner. Yes. I just thought it might be helpful to the
Committee--I know this will be an issue of great interest to
many. Approximately 2-weeks ago, 3-weeks ago, California did
complete a file, a submission to EPA seeking a waiver from the
2-percent oxygenate requirement in the Clean Air Act for the
reformulated gasoline program.
Independently, California has passed a state law that
effectively bans MTBE, which is one of the oxygenates currently
available within California within--I might get the year wrong
but I think it is two to 3-years.
The waiver petition to EPA, the argument that California is
seeking to make, it is a very technical, highly modeled type
analysis that will have to be done but essentially they are
suggesting that the use of an oxygenate in their fuels--and
remember, California fuels are somewhat different than fuels in
the rest of the country; they have been in a different fuel
program, given the nature of their air pollution challenges--
that the use of an oxygenate could actually contribute to
increases in some pollution parameters.
This is a technical question and they have provided to us
all of the modeling that they believe demonstrates that, all of
these things that are called inputs and outputs and I do not
even understand it after a while, and our technical people are
now reviewing it. It will take some period of time for that
review. It is a highly complicated computer-type review that
has to be done.
When we complete that review, which will take us some
time--it could be months--we will then go through a notice and
comment process--Federal Register notice as to how we read the
models that California gave us, how they read them, if there is
some disagreement, what we believe the law allows for, and what
we would propose to do. Then we will take comment on it and
then after the comment period, we would make a final decision
on whether or not California's request for a waiver from the 2
percent oxygenate would be granted based on legal and technical
grounds.
Senator Fitzgerald. Will you be able to take into
consideration other factors, like the impact on farm income of
the loss of that kind of market, or do you have to do it--will
you need some congressional help to think in broader public
policy terms?
Ms. Browner. I should point out the provision in the Clean
Air Act which California is relying on is a provision that has
not, to my knowledge--I do not have any air people; these are
all water people--to my knowledge is not a provision that has
previously been used.
I know this for a fact. EPA has never received a request
for a waiver from the 2-percent oxygenate. In terms of what
factors we are allowed to review, that is obviously something
that everyone, I am sure, will have a point of view on and we
will be happy to share with us.
I should say that we do believe that the Clean Air Act does
create that opportunity to seek a waiver, that there is no
question in our minds about the right of a state to apply for a
waiver, that Congress was clear in that respect. But in terms
of what you have to demonstrate and what kind of modeling is
sufficient and what kind of factors then get included in that
analysis is something we are currently working on.
Senator Fitzgerald. Well, we will look forward to
continuing our discussions with you. If you could keep in mind
that meeting that we are hoping to get--in fact, we wanted to
have the Energy Secretary there, as well, and maybe if the
three of you could talk with the House and Senate members who
requested that meeting, I will follow up on that. I think the
letter was actually sent to the White House.
So we will follow up with that and we appreciate very much
your hard work, both on behalf of the environment and on behalf
of our farmers. Thank you.
The Chairman. Just to try to bring some simplicity to what
just transpired, is it not the case that we had a debate on the
Senate floor in which the senator from California, Senator
Boxer, and others were talking about MTBE and the fact that
this was unhealthy for her state?
So the thought immediately arose--Senator Fitzgerald,
Senator Harkin and I all sort of shared this thought, that, in
fact, if ethanol could replace MTBE, this might be a good thing
for clean air in California, as well as farm income.
Now to that respect, Mr. Rominger has conducted a study, or
his colleagues, and they found that, in fact, it does have a
price effect. Predictably, if you send more ethanol to
California, more corn goes into ethanol and all the rest. It
could relieve LDPs at another level from which we are now
talking, so there is another good effect there, too.
Now as I understand, however, in this highly modeling
effect you are talking about, some people out in California
have said hold on; before you send all the ethanol out there,
are there some problems in the environment with the ethanol? In
other words, as we are replacing MTBE, do we run into some
other dilemmas? And we do not know, and this is being studied,
among other things. And, of course, those of us who are corn
farmers find urgency in the study coming to conclusion as
rapidly as possible if the verdict is to be a favorable one so
we can move on.
Now it seems to me it would be helpful, and this is one
value of the senator's question, of having this dual appearance
today. This is an EPA question; it is an agricultural question,
I think, for the common sense rules I just stated. Probably
Secretary Rominger's study, which is there probably, not well
known to any of us, we need to exhume and sort of circulate.
Likewise, some state of play as to what is going on in
California.
If it is this consideration by EPA and the modeling and the
several months, all of us keep this--we get it in fragments
from time to time. We have community meetings of
environmentalists, corn farmers, other advocates of ethanol.
And I suppose while we are at it on the ethanol situation,
and this comes just anecdotally likewise, given the price of
corn, which is low, the price of petroleum, which is high, a
good number of people have been wondering in a common sense way
in America, has the spread between the cost basis of the two
narrowed? And the answer is yes but the question is how much?
And this is tremendously interesting. We are getting answers
all over the place. There are sales in Nebraska that raise
questions as to whether almost parity has been achieved.
Now, people rushed in to point out no, that has not
occurred as yet; there is still a gap. But to the extent the
Department of Agriculture can furnish this committee and
therefore the rest of the American public some really
economist-based facts on this, why, this is going to help the
debate immeasurably, I believe, and take it at least a few
steps further.
Secretary Glickman. We will make sure you get whatever
studies we have.
Ms. Browner. If I might, Mr. Chairman, just in closing on
this particular issue, it is a difficult and a complicated
issue. I want to be very clear.
For a long time now, EPA has been concerned about MTBE. We
commissioned a blue ribbon panel. We have embraced the
recommendations of that blue ribbon panel. We have called upon
Congress to help us address the problem and we would be--I
think everyone in the administration remains very hopeful that,
that opportunity could present itself and that we could all
work together to find an appropriate solution, given our
concerns about MTBE.
I do not think there is any administration--President, Vice
President, EPA, USDA, Department of Energy--that has done more
for ethanol. We are big, big believers in renewal energy
sources and in the role of ethanol. We also have a concern
about MTBE. They happen to be caught up in the same statute. It
would be very, very helpful, I think to all of us, if we could
work together.
The Chairman. Excellent. Well, we thank the entire panel,
especially the Administrator and the Secretary. It has been
quite a devotion of your time today but you have been helpful
to us and thank you for coming.
The chair would like to call now a panel of state and
private witnesses, and this will include Mr. James A. Kraft
representing forestry. He is vice president and general counsel
and secretary of Plum Creek Timber Company, Incorporated.
Mr. Paul Johnson, representing state conservation agencies,
is the former chief of the USDA Natural Resources Conservation
Service, director of the Iowa Department of Natural Resources.
Third, Ms. Roberta Savage, representing water
administrators, is executive director of the Association of
State and Interstate Water Pollution Control Administrators.
Mr. Robert Adler, representing clean water network
environmental organizations, is professor of law and interim
director, Wallace Stegner Center for Land Resources and the
Environment of the University of Utah College of Law.
And Mr. John Barrett, representing agriculture, is a cotton
and grain producer from Edroy, Texas.
It is great to have all of you before us this morning. We
will ask for the sake of full discussion by you and the
Committee, that you try to limit your comments to 5 minutes.
This will not be rigorous in the event that this is impossible,
because, as you noted, the Committee has been liberal in terms
of time to make sure we have a full discussion.
Let me start in the order I introduced you. Mr. Kraft has
already been mentioned by me mistakenly in a role that he did
not take, as EPA administrator in Region I, but he did mention
that testimony, which was important, with our dialogue with the
first witnesses. Mr. Kraft, would you give your testimony?
STATEMENT OF JAMES A. KRAFT, VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY, PLUM CREEK TIMBER COMPANY, INC., SEATTLE, WA
Mr. Kraft. Thank you, Mr. Chairman. I appreciate the
opportunity to testify today on behalf of the American Forest
and Paper Association on EPA's proposed Clean Water Act
regulations. While AF&PA represents the manufacturers of wood
and paper products, all of whom have serious concerns with a
multitude of other program changes contained in this
rulemaking, I will confine all of my remarks today on the
forestry components of the National Pollution Discharge
Elimination System [NPDES] rule.
I would like to cover four things today. First I would like
to point out the effectiveness of the current programs under
Section 319. Second, I would like to point out that this
current proposal will impose substantial economic burdens and
will be unwieldy and inefficient, as was described by Senators
Baucus, Wyden and Murray in a recent letter to the EPA. Third,
I would like to go into what I believe is EPA's lack of legal
authority to pass this regulation. And lastly, I would like to
propose some common sense alternatives.
First, I would like to focus on EPA's decision to abandon
almost three decades of statutory interpretation of the Clean
Water Act and case law by eliminating the designation of
forestry as a nonpoint source activity. EPA has contended that
because silvicultural activities can be a cause of water
quality impairment, that this gives them the discretionary
license to label such activities as point sources. However,
EPA's citation of silviculture's impact on water quality is
selective and runs counter to our own experience throughout our
ownership. At Plum Creek we have 3.3-million acres of
timberland in the states of Washington, Idaho, Montana,
Arkansas, Louisiana and Maine.
In every state with significant forest management, those
states have forestry best management practices or rules. These
programs have been submitted to and approved by EPA as part of
the Section 319 nonpoint source program. More than 20-states
conduct periodic BMP compliance surveys. Others have even gone
further and are conducting statewide BMP effectiveness studies
to measure water quality upstream and downstream of forestry
activities.
The results of these studies demonstrate the general
effectiveness of BMP programs and I think Administrator Browner
rightly pointed out earlier in her testimony that there are a
lot of success stories under the current program, and I think
she is right.
I think the studies are also helping us to determine how to
better improve the BMPs as we go forward. Take the state of
Montana, for example, where our company has 1.5-million-acres
of timberland. Over the past decade, Montana has developed a
pretty rigorous BMP program and a compliance survey. We get
audited on our performance. The most recent results found
successful implementation statewide of BMPs averaged 94-percent
and our company is well over or pretty close to 100-percent; it
is in the 98-97 percent range. That is up from 78-percent in
1990.
This improvement was achieved not through heavy-handed,
top-down regulations but was brought about by locally led
efforts to educate loggers and landowners.
Even using EPA's most recently available public data, only
11 states listed silviculture as a cause of impairment on their
Section 303(d) lists. Further, almost two-thirds of the stream
segments listed due to silviculture were from one state--
Montana.
However, this list has been found to be highly inaccurate.
In 1997 Montana began requiring documentation of the scientific
basis for the listing of water quality limited streams.
Montana's Department of Environmental Quality has found that
credible data was lacking to justify listing in over half the
streams on the original list.
In my written testimony that I submitted there are a number
of other specific statistics but in the interest of time I will
not go into that, as to why silviculture and forestry is a
relatively minor cause of water quality impairment across the
country.
I would like now to shift to my second point, which is the
economic burdens that would be created by the proposed rules
and comment on the ineffectiveness and the unwieldy nature of
the proposal.
The forestry community is struck by the heavy-handed
command-and-control approach that this rule incorporates. It
would be imposed upon the states and private landowners
throughout the country. EPA's economic analysis that
accompanies the proposed rules is inadequate. According to
AF&PA assessments supported by the work of five independent
economists, the incremental economic burden to landowners,
operators, communities and government agencies could easily
exceed $1 billion annually nationwide.
The administrative costs alone of an NPDES program for
silviculture, even in the unlikely event, and I would like to
get into that later because I think a very good question was
asked earlier that I would like to answer--even in the unlikely
event that this rule would be invoked sparingly, only for bad
actors, the cost would exceed EPA's estimates by severalfold.
Because the economic impact will far exceed $100 million
annually, we believe that EPA must conduct more detailed and
comprehensive cost-benefit economic analysis of this proposed
rule.
Not only would the economic burdens be greater than the
proposal recognizes but it is hard to comprehend, sitting here,
as someone who deals with forestry activities every day, how
the EPA would develop and implement a workable NPDES permitting
system for the thousands upon thousands of forestry activities
that occur every year.
Another concern that we would like to share here about the
burdens and the inefficiencies of this rule is the impact it
would have on voluntary conservation efforts that are today
working to protect and improve water quality. And one thing
that our company has been very interested in and I think the
Simpson HCP was mentioned earlier today, there are millions of
acres of private land that are today covered by habitat
conservation plans, which, as you know, are approved by the
U.S. Fish and Wildlife Service and the National Marine
Fisheries Service under the Endangered Species Act to protect
fish and wildlife habitat.
Many of these plans are designed to protect water quality
and fish habitat. Our fear is that this proposed rule would
have a great potential to undermine these efforts that are
being so successful.
Just as an example for our company, we are very near
completion of a massive habitat conservation plan in our
Northwest ownership covering 17-species of fish, including
salmon and trout, for 1.7-million acres of our timberland. If
these rules were to go into effect as they are currently
proposed, we could be faced with wholly new requirements from
another Federal agency for the very same resources that are
being protected by our plan. And this is a scary thought for us
because we have invested more than $2 million and 2-years in
working with the agencies to prepare this plan and I suspect
that other landowners who would look at this proposed
requirement and the threat that they might have to obtain NPDES
permits and comply with a whole new set of TMDL rules would be
reticent to expend that kind of resource.
As an aside, our company, as we have gone through this
process, has kept EPA informed and we are very much interested
in a voluntary way, working with EPA, to see how this plan can
dovetail with the needs of the Clean Water Act.
It appears that EPA is trying to solve all of the perceived
problems in the Clean Water Act through radical changes to the
303(d) program and through the designation of silviculture as a
point source. However, the 303(d) program, as designed by the
Congress, was never designed to take on such a massive role,
which leads me to my third topic, that the radical changes
called for in this proposal have such policy implications that
it is improper for the EPA to act without specific direction
from Congress. In fact, the legal analysis that we have done
shows or would suggest that there is no legal authority under
the current act for this proposed regulation.
I go on further to say that we concur with the concerns
raised by Senators Baucus, Wyden and Murray, which questioned
the legal underpinnings of the proposal and the need for
congressional direction on this kind of policy change.
Under the current proposal, EPA would turn the Clean Water
Act on its head and would redesignate most forestry activities
as point sources. I think there was a question there: well,
what is going to be a point source under this regulation and
what is not going to be a point source? The answer was well, it
depends upon whether you are a bad manager or a bad actor. And
I guess looking at that, there is no way to determine whether
in someone else's opinion you constitute that and there is
going to be no way, I think, to figure out if you need a
permit.
Despite I think the very well-intentioned limitations
stated by Administrator Browner that they would use this
authority only in limited situations and as a last resort, I am
afraid the courts will not let them do that. Selective
enforcement of a regulation, in some instances calling it a
point source and in other cases for the same activity calling
it a nonpoint source, will not be respected by the courts and
inevitably I think there would be litigation here that would
expand the NPDES portions of this rule to all water bodies
where forest management is conducted.
The forestry community, many state agencies, governors and
others oppose the designation of forestry activities as a point
source. We do not believe there is any legal or statutory
authority for EPA to revise the regs that would eliminate the
long-standing recognition of forestry as a nonpoint source
activity merely to address some unidentified, last-resort
situations on a case-by-case basis.
Before I close, Mr. Chairman, I would like to discuss the
reasonable assurances requirement found in the proposed TMDL
rule. Setting aside the scientific difficulty of actually
calculating a daily load from nonpoint sources, the proposed
rule requires states to build in and have an implementation
plan for every TMDL. We do not believe that Section 303(d)
provides EPA with this authority; nor does it provide, as EPA
contends, that the implementation plans can be approved,
disapproved or taken over by EPA.
What it appears to be here is a case of a proposal
extending Federal enforcement over what has traditionally been
a state activity. And this is not a minor legal issue but one
that has enormous consequences for private landowners
throughout the country, large and small.
I would like now to turn to my last point, which is
alternatives.
The Chairman. Would you summarize that?
Mr. Kraft. Sure. This will be very quick.
I think we all share the goal of cleaner water, certainly
at our company and throughout the AF&PA. I think that there are
some common-sense things that can be done to achieve those
goals.
In essence, I think Section 319 can be made to work. It is
working. Examples are there that it is working. If we want to
make it work better, I suggest rather than top-heavy
regulations that we increase the funding, make the partnerships
work better, improve the BMP program.
Mr. Chairman, over 30,000-comments have been submitted on
these rules and the forestry community represents a sizable
share of those comments. We feel strongly that only Congress
should determine how nonpoint source activities are addressed
under the Clean Water Act. In the end, we believe the current
proposed rules will discourage the practice of sustainable
forest management. They will create disincentives to maintain
timberland in the U.S. In fact, I could see a lot of people
getting out of the business if these were passed.
They would stifle economic opportunity and prosperity in
communities that are desperate to be part of the economic
revival in this country and it would make it a lot more
difficult for people--the guys who own 40 acres--to make a
living off their land.
This concludes my remarks, Mr. Chairman, and I would
welcome any questions you have.
[The prepared statement of Mr. Kraft can be found in the
appendix on page 81.]
The Chairman. Thank you very much. Let me say at the outset
your statement will be published in full in the record, Mr.
Kraft, and that will be true of each of the witnesses.
Mr. Johnson?
STATEMENT OF PAUL JOHNSON, DIRECTOR, IOWA DEPARTMENT OF NATURAL
RESOURCES, DES MOINES, IA
Mr. Johnson. Thank you, Mr. Chairman and Senator Harkin. It
is good to be with you today.
In looking at my colleagues on either side, I see they have
already scratched half of their testimony. I think we could all
spend an hour with you and still have a lot to say. I will not
go through my prepared remarks; those are for the record and I
would urge you to take a look at them.
But I would start today by reminding you of where we have
come from. Iowa is working land, probably more developed than
any other state in the country. We have no national forests, no
national parks, no wilderness areas. We work it all. Senator
Harkin, maybe we need to work on that part of it, as well.
But nonetheless, it is working land and our subject that we
have in front of us today certainly does impact Iowa. We live
on this land; we work this land; we are proud of it.
I am going to skip the remarks that deal directly with the
TMDL, although I do want to say that although my written
testimony raises serious concerns about the present TMDL
proposals, I want to make it very clear that inaction or
business-as-usual should not be the option. We have made great
progress in cleaning up our nation's waters but the public is
asking for more and we believe there should be more and we need
to accelerate our efforts.
I would like to take my remaining minutes and maybe offer a
slightly different perspective on this. I believe there have
actually been two national clean water acts. 1972 is the one
that we are talking about now, the foundation on which we are
presently trying to add additional programs. I do not want you
to weaken where we are with the Clean Water Act, the 1972 act.
It has served us well in dealing with point source and should
provide the underlining coordination and regulatory framework,
I believe, for dealing with nonpoint, as well.
But there was another one back in 1935, the Soil
Conservation Act back then that established conservation on
private lands in this country. I believe if we had called that
a Clean Water Act back in 1935, we would probably have even
more soil conservation than we have today. But I think we
should recognize the importance of that in the work that has
gone on over the past 65-years. It, too, has served our Nation
well. We are a healthier Nation because of it, I believe.
Two acts, two cultures. Our challenge, I believe, is to
facilitate convergence of those cultures. You cannot deal with
the 1972 act without understanding 1935. And I do not believe
we can take the next steps in our 1935 process without support
of our 1972 act.
I would like to make some suggestions for our 1935. The
delivery system is in place and it is a good one. Just four or
5-years ago people were wondering whether we should take it
apart as we move toward a more market-driven farm program.
Do not take it apart. Strengthen it. We have land grants
out there. We have ARS. We have good Forest Service research.
Challenge them to produce the conservation commodities that we
are talking about here. Think big. I believe you ought to put
much more resources into research on how we can produce
conservation commodities from private lands.
Strengthen the Extension Service. Do not let it fade away.
As we talk about nonpoint and we talk about the other
opportunities on private lands, the Extension Service should
play an important role. So should the Natural Resources
Conservation Service and the Farm Service's agency.
Strengthen conservation districts and watershed efforts.
Locally led conservation can work and we are learning today how
to do that better.
I would urge you to support additional technical assistance
out there. I believe it is tragic that in our mad rush to cut
government, we have slashed the heart and soul of private lands
conservation. We should have twice as many people out there
working with private landowners today, not the number that we
now have.
We do not improve education by cutting teachers. We do not
improve national defense by cutting our military. We do not
improve medical services by cutting our doctors and nurses. All
of these are what we are about in the technical assistance that
we provide private landowners. In fact, it is the private
landowners who do the conservation, not these people, but these
people are really needed out there to do it.
In Iowa we have a huge backlog because of lack of technical
assistance. In my home county we have a one-year backlog under
the conservation buffer initiative. We have farmers wanting to
sign up and enroll them, but we do not have the people out
there to do it. The same is true on grazing lands; I believe
same is true on urban stormwater issues. I think that if we had
technical assistance there, we would start improving our water
from nonpoint much more rapidly.
We have a good set of basic conservation rules. EQIP--
Senator Lugar, thank you for that. It is an excellent program.
RCRA Implementation Plan [RIP], Wetlands Reserve Program [WRP],
Conservation Reserve Program [CRP], continuous CRP, but I would
argue that we need more resources in those programs and we need
more flexibility.
CRP is probably the one program that is adequately funded
at this point, although I think some would argue that we could
always use more. We have almost $2 billion in that program, and
what does that tell farmers? Do not farm, and you are a good
conservationist. Yet when it comes to the working lands, the
lands that we are talking about here today, we have just a
fraction of that, perhaps one-tenth of it.
In Iowa we have $100 million backlog right now on WRP and
floodplain easements, $100 million backlog. Ten years ago I do
not think you could have gotten a farmer to sign up for that
program and yet today, $100 million backlog, and that is after
farmers are already told that there is not much money in the
program.
We need more flexibility and we certainly need to start
rewarding stewardship instead of rewarding people after they
have made mistakes. We have farmers out there who have buffers
along rivers and streams. They do not quality for the program.
They are told to plow them out, farm them for 2-years, and come
back; then you are eligible for a CRP contract. I think that
has to change.
Senator Harkin, I think your proposal and the
administration's proposal is a wonderful idea. Although it is
$1.3 billion, I would view that as a pilot, given the
opportunities that we have.
I think we need to build consensus for our National Private
Lands Conservation Act. We have done public lands; we have a
great start on regulatory. We will continue to argue about
whether or not they are as good as they ought to be but I think
it is time we looked at that 70-percent of the land out there
and looked at ways in which we can really improve our
conservation on private lands, and that is the heart of what we
are talking about today.
Our Governor Vilsack recently called upon Secretary
Glickman to work with him toward a National Governors
Conference on Private Lands, similar to what Teddy Roosevelt
did back at the turn of the century for public lands. I would
urge you to take part in that, hopefully as our governor will
continue on that.
In Iowa this year we are trying to converge the 1935 and
the 1972 Clean Water Acts, improving our TMDL program, our
monitoring, our standards, our assessment, and accessing more
the USDA programs 319 and research. We can make these programs
work and we can improve our national waters.
Thank you for the opportunity to be here today.
[The prepared statement of Mr. Johnson can be found in the
appendix on page 95.]
The Chairman. Thank you very much, Mr. Johnson.
Ms. Savage?
STATEMENT OF ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF
STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS,
WASHINGTON, DC.
Ms. Savage. Thank you very much, Senator. And before I
begin, I would like to say that normally our association
invites, and I did invite, a number of state administrators to
be here but each time I called them they said, ``The state
legislature is holding a hearing on TMDLs.'' So you have the
executive director instead.
Your staff has been wonderful and accommodating. They would
call me and say, ``Who is going to testify?'' and I would give
them a name and then they would go into hearing. So your staff
is wonderful and I appreciate their patience.
My name is Robbi Savage. I am the executive director of the
Association of State and Interstate Water Pollution Control
Administrators.
I started with the association in 1978 and prior to that I
worked with the League of Women Voters on the 208-program,
which was the precursor to our nonpoint source 319-program; and
prior to that at the United States Environmental Protection
Agency in the Office of Water, also in the nonpoint source and
319-program. So I have been involved in these issues for more
years than I hope you will count up and I have very strong
feelings about the way this program is being managed across the
country.
The states feel very strongly as well and back in 1972 when
the bill (the Clean Water Act) was passed, it was very clear--
at least we thought it was--that the states would take the lead
in the clean water program. And prior to the passage of the
1972 Act States viewed themselves as the professors. When EPA
was created in 1971, things got all turned around and the
States, in EPA'S mind became, in essence, the students. That
relationship has changed somewhat, as you know, over the years,
but through it all, the states have been at the forefront of
the clean water program and Congress recognized that in the
1972 bill, as well as other environmental and natural resource
statutes.
The states agree that the TMDL program is a useful tool in
managing our overall clean water program. It is not the only
tool; it is one tool. It is a management tool. It is not an
enforcement tool, and this is an issue that nearly every state
brought up in its comments. To USEPA on the TMDL Regulations.
The states believe that they are co-regulators with the
Federal government and in this relationship with EPA that we
often call a partnership or a marriage, I tend to think of it
either as co-regulators or a continuing partnership but in this
process, we have come forward time after time with EPA to work
on not only these regulations but the guidance on the 319-
program.
We cosponsored the Western Governors TMDL forums. We met
with EPA for an intensive two-day event at the wye Institute to
discuss the TMDL regulations. We have worked with EPA hand in
hand on the 319-guidance for the enhancement of the nonpoint
source 319-program.
I tell you this because we have tried in every way possible
to enhance the program on nonpoint sources because we think it
is an important, a very important issue for water quality
improvement. On the other hand, we do not believe that the
enforceability envisioned by EPA is authorized in Section 319
or in the Clean Water Act.
Also I would like to say that in working with EPA, we came
to a number of conclusions and resolutions, but since they were
still in the Federal Advisory Committee Act [FACA] process in
the development of the rules, there were no commitments made at
that point.
EPA is trying to move the program forward and we understand
that but the comments that we provided to the EPA, in
conjunction with the Environmental Council of the States,
(which is the State secretaries and commissioners, like Paul
Johnsons around the country), and the Coastal States
Organization. Together we outlined a number of concerns and
rather than try to go through those for you one by one as an
association, I thought it might be more useful to just simply
read to you some of the state comments that we received.
And I would like to say, having been at the Agency when the
term nonpoint source was coined, I remember being in the room
and sort of fighting over what is a point source and what is a
nonpoint source, at that point we determined, at least in those
old days, back in the very early 1970s, that a point source
would be those things that came from a pipe or a specific point
that you could look at and point to--hence the name point
sources. A nonpoint source was just about everything else.
This clearly has changed over time. You look at the
stormwater rules for example. Stormwater has now been
determined to be a point source, versus nonpoint. You look at
forestry. That is now being determined to be a point source. So
the definitional issues have changed but the original point and
nonpoint definitions we thought were very clear and very easy
to deal with.
Let me share with you the views of the states. In
Massachusetts, the role of Section 303(d) has been greatly
expanded by the proposed regulations. The Department Mass of
Environmental Protection believes that EPA's proposal is
overinclusive and questions not only the need for the expansion
but whether EPA has the statutory authority to propose nonpoint
source requirements.
Another state, Delaware commented that the Clean Water
Action Plan envisions a number collaborative effort to restore
and sustain the health of our watersheds. The TMDL rule impedes
the state's watershed approach rather than complements it.
In Kansas they point out that the degree and detail of the
prescribed remedies suggested will negative effective TMDL
establishment and its implementation. EPA has the right and
duty to expect TMDLs to be developed. However, its right to
describe the specific details with TMDLs must be limited. The
effective implementation is a state and local role in directing
resources on a priority basis in certain geographic areas. It
is not EPA's role, right or responsibility.
The comments go on and on, Mr. Chairman. There is a
significant workload associated with the proposed regulations.
The magnitude of the task is formidable. Given the estimates of
the total maximum daily load workload and assuming that the
states and EPA will be able to take advantage of the lessons we
have learned, economics of scale and delisting inappropriate
waters would have proceeded, EPA would still have to approve
one TMDL each day in the next 15-years to meet the 40,000 that
is currently projected by EPA.
There is no way, Mr. Chairman, that the states can do this
job, not as it is currently outlined. There is not the money
the time or the current staff resources. We need at least a
tripling, even with the funding increases that were outlined by
the Administrator, at least a tripling of the existing
resources.
The states are being set up to fail in this context, Mr.
Chairman, and that is very troubling to the majority of us.
[The prepared statement of Ms. Savage can be found in the
appendix on page 100.]
The Chairman. Thank you very much, Ms. Savage.
Mr. Adler?
STATEMENT OF ROBERT ADLER, PROFESSOR, UNIVERSITY OF UTAH,
COLLEGE OF LAW, SALT LAKE CITY, UT
Mr. Adler. Thank you, Mr. Chairman, and I appreciate the
opportunity to be here. I do want to clarify that while the
Clean Water Network asked me to testify today, I do not
represent the Clean Water Network, which is a very large and
diverse coalition of organizations.
I am an individual who has been involved in and interested
in the effective implementation of the Clean Water Act for a
long time and I was a member of the FACA Committee on TMDLs. I
am also a participant in the ongoing study being conducted by
the National Academy of Public Administration for Congress of
innovations in environmental programs designed to make them
more effective and cost-effective, with a focus on watershed
programs, among others.
I want to begin by saying that there is no doubt, as
Senator Harkin mentioned earlier, that the proposed regulations
will change the manner in which farmers and the forestry
industry must address their environmental impacts. Where I
disagree with most of the other witnesses is that I do not
necessarily think that the net effect of the proposed
regulations will be the detriment of those sectors of the
economy. In fact, I believe that by increasing the efficiency
with which both public and private resources are dedicated to
agricultural and silvicultural pollution, the proposed changes
have the potential to benefit both the environment and the
affected industries.
I also believe that they have the potential to help this
committee's programs by ensuring that the dollars that are
spent under the auspices of the various agricultural assistance
programs are again conducted in a smarter, more cost-effective
way.
But I want to spend a few minutes talking about the impact
of U.S. agriculture on water quality and aquatic ecosystem
health, facts that have been known to this body for a long
time.
The 1972 Senate committee report said that agricultural
pollutants are major contributors to the Nation's water
pollution problem and that the waters of the Nation cannot be
restored until this very complex and difficult problem of
nonpoint sources is addressed, findings that have been
confirmed in study after study, data produced not by EPA but by
the states themselves.
EPA's 1991 report on nonpoint source pollution, assessing
the information provided by the states, found that agricultural
run-off impaired or threatened more than 100,000 assessed
river-miles and more than 2-million acres of lakes. Logging
impaired more than 15,000 assessed miles of rivers nationally,
this based on a database which only looks at approximately one-
fifth of the Nation's waters.
Similar results have been produced year after year and as
recently as the latest EPA national water quality assessment,
which continued to identify agriculture as the number one cause
of impairments of the Nation's lakes and rivers and the fifth
leading cause of pollution of estuaries.
Now, the response from the agricultural community, from the
states, from the agricultural agencies is that significant
efforts have been spent over the past 30-years, as Mr. Johnson
notes, over the past 75-years or so, to address these impacts.
Millions of dollars have been spent. Thousands of BMPs have
been implemented around the country. Serious efforts at
education, serious voluntary programs, and I agree: all those
programs have been operating and in many cases to good effect.
Yet despite those programs and despite those laudable
efforts, the data remain clear: agriculture remains the leading
source of water pollution in the United States. So the question
is why this paradox? Why have we spent so much money and still
find that so many rivers and lakes are impaired by agricultural
pollution?
My view is that it is because those dollars and those
programs have not been targeted as wisely and effectively as
they could be, and that is precisely where TMDLs can be a tool
to help and precisely why I believe that this committee and the
agricultural community should, in fact, welcome the TMDL
process as a way to use those resources more effectively.
For example, cost-sharing dollars spent through the various
farm bill programs can be targeted at watersheds identified
through TMDLs as needing reductions in particular types of
pollutants. Within those watersheds, TMDLs can be used to
target the pollution sources most likely to contribute to the
problem and most likely to be a part of the solution.
One of the programs that I studied as part of the NAPA
review program was the Colorado River Basin Salinity Control
Program and I want to use that as an example. It was not
required to use a TMDL because they are not technically in
violation of water quality standards, but for more than 25-
years they have used the equivalent of a TMDL through a
modeling process to calculate the total salinity load
reductions necessary to attain and maintain water quality
standards and to identify the particular sources of salinity
that can be attacked most cost-effectively. Most recently, they
have used it for a market-type competitive bidding process,
which has approximately doubled the cost-effectiveness of
salinity control in the basin.
So I draw two basic two basic conclusions from my study of
the salinity program. One is that a TMDL-type process can be
used to target and select the most cost-effective control
projects but does not mandate particular solutions. Second is
that it has produced significant reductions in salinity, water
quality standards have been met in the basin as a result and
because of that TMDL-type process, it is one of the most
effective nonpoint source pollution control programs in the
country in terms of the real goal not of how many BMPs we put
on the ground but how many waters and how many miles of water,
in fact, attain water quality standards.
And the same is true of the TMDL regulations, which very
explicitly say that TMDLs in implementation plans can include
regulations, ordinances, performance bonds, contracts, cost-
sharing agreements, MOUs, site-specific or watershed-specific
voluntary actions or compliance audits of best management
practices. The regulations are clear that they do not mandate
particular results within the program.
I would like to say a little bit about three issues that I
understand to be of particular interest to the Committee. One
is whether or not waters impaired by nonpoint source pollution
should be included in the program. The bulk of remaining waters
polluted around the country, as I said earlier, are impaired by
nonpoint sources. Excluding nonpoint sources from the program--
not from the NPDES permitting program but from the TMDL
program--would render that program of extremely limited value
and, in fact, would make virtually no sense. The entire point
of TMDLs is to look at the aggregate pollution from all sources
within a watershed.
It is like the SIP program in the Clean Air Act, which does
the same thing. If you try to measure the whole but to ignore
some of the component parts, you do not get good results. In
fact, you get nonsensical results. It would be like trying to
assess a corporate balance sheet by looking only at the cash
assets of the corporation while ignoring the capital assets or
the inventory simply because they are a bit harder to measure.
They are harder to measure but if you do not measure them, you
do not get the full balance sheet from the corporation.
The second issue is implementation plans. One of the most
clear unanimous recommendations of the FACA committee and I
believe the most important and effective recommendation was
that TMDLs without implementation plans are nothing more than a
bureaucratic paper exercise. The implementation plan is what is
going to take that load calculation and translate it to real
water quality goals, and I think EPA would be making a very bad
mistake to delete the implementation planning provision from
the regulations.
Finally, the issue of EPA's authority to designate certain
selected silvicultural activities as point sources, which has
received a lot of attention today. The statute defines point
sources not in terms of the nature of the economic activity but
the nature of the discharge, with the exception only of
agricultural stormwater and irrigation return flows, which are
subject to particular statutory exemptions.
A point source quite simply is any discernible, confined
and discrete conveyance. Federal courts have interpreted the
term broadly. So based on the language of the statute alone,
any silvicultural discharges through a discrete conveyance is a
point source. Any silvicultural discharge that reaches waters
through other means--run-off--is a nonpoint source.
EPA, by regulation, has defined certain activities,
silvicultural activities, as being exempt from the program.
What EPA proposes to do now is to modify those regulatory
exemptions under very limited circumstances where water quality
violations occur, as identified through the TMDL process. It is
not, as has been alleged, converting statutory nonpoint sources
to point sources.
So with that, I again thank the Committee for holding the
hearing. I think the TMDL program is the best available tool to
look at watersheds on a watershed-specific basis and in a
comprehensive rather than a fragmented way, and I would be
happy to answer any questions the Chairman might have.
[The prepared statement of Mr. Adler can be found in the
apendix on page 116.]
The Chairman. Thank you very much, Mr. Adler.
Mr. Barrett?
STATEMENT OF JOHN BARRETT, COTTON AND GRAIN PRODUCER, EDROY, TX
Mr. Barrett. Thank you for inviting me, Mr. Chairman. My
name is John Barrett and I am a cotton farmer from San Patricio
County, Texas.
Even though I am a farmer, I am not confused, as was
alluded to by Secretary Glickman. I would not blame you for
being confused, Mr. Chairman. We have heard from the Government
witnesses that TMDLs are not really going to do anything to
nonpoint sources. Then we hear from Mr. Adler that they are the
best hope to control nonpoint sources.
We in agriculture strongly believe that EPA's
interpretation of the TMDL statute, Section 303, does not
conform to the legislative intent expressed by Congress when
the Federal Water Pollution Control Act was passed in 1972. We
believe that Congress enacted Section 303(d) as a back-up
mechanism to deal with point source discharges when technology-
based controls proved to be inadequate to maintain water
quality standards.
The real statute that Congress enacted to deal with
nonpoint sources was Section 319. When 319 was passed in 1987,
the debate in the Senate is very informative when juxtaposed
with this current notion EPA has that Congress really somehow
passed nonpoint controls when 303 was passed 14-years earlier
in 1972.
Senator Stafford. ``A new Section 319 establishes a program
to begin the process of addressing this hitherto unregulated
source of water degradation.''
Senator Simpson. ``For the first time, we have included a
provision in the Clean Water Act related to nonpoint source
pollution that comes from farmlands, timber operations, and
other sources of run-off which are not considered point
sources.''
Clearly, the senators in 1987 did not think that they had
established a regulatory program for nonpoint sources in 1972.
But beyond the very issues relating to statutory history
and legislative intent, the very term ``total maximum daily
load'' is counterintuitive to nonpoint source management. Total
maximum daily load implies a constant and regular engineered
and controllable environment like you can do with a valve on a
pipe at a point source.
Nonpoint source professionals are well aware that nonpoint
source run-off is distinctly unpredictable and unamenable to
control. Farmers cannot control the rain. If we could, I would
not have had a crop drought disaster in 1996 and 1998 and then
two floods from Hurricane Bret and Hurricane Floyd in 1999. Mr.
Chairman, when the EPA figures out how to control the weather,
those of us out in the real world of run-off will be able to
comply with a total maximum daily load.
In its zeal to redefine nonpoint source run-off as a
discharge subject to the TMDL statute, EPA is attempting to
drive a square peg into a round hole. The Federal Section 319
program that Congress passed grants states the flexibility to
develop practicable, economically feasible and incentive-driven
approaches which are implemented as a suite of best management
practices, or BMPs. 319 approaches are considered to be
implemented when they are put in place. In other words,
implementation of the BMPs is equivalent to compliance.
The TMDL statute has a different bar. Its requirement is
that compliance is not achieved until water quality standards
are met. For nonpoint source run-off, this requirement raises
the real possibility that a source will have to be eliminated
from a watershed in the event that BMPs and modified BMPs
ultimately prove ineffective in attaining water quality
standards. Let me be very clear. This is the Federal Government
telling farmers whether they can farm or not.
Mr. Chairman, EPA has made a policy decision with which it
cannot possibly comply. Under the approach EPA is proposing in
the new TMDL regulations, if an EPA regional administrator
disapproves a state-submitted TMDL and/or implementation plan,
then EPA must impose a Federal TMDL and implementation plan on
the state and stakeholders in the watershed within 30-days.
Mr. Chairman, this must be a joke. EPA cannot even answer
their mail in 30-days, let alone develop a TMDL and
implementation plan. Even worse, the Federal implementation
plan equals Federal zoning and Federal land use planning.
Cities can zone, some counties can zone, states can do it
within limits, but the last thing most of us heard is that the
Federal Government needs unambiguous statutory authority to do
so. By this I mean Congress passing a law and not the
Administrator of the EPA passing a regulation.
Finally, I recently heard a senior EPA official tell a
group that this program will have a multi-billion dollar
impact, and I agree. However, EPA is officially claiming only
$25 million a year on states and no costs on the private
sector. I have even heard the Assistant Administrator for
Water, Mr. Fox, tell a subcommittee of the House that EPA would
never regulate nonpoint sources through a TMDL. However, EPA
developed a single TMDL in California which imposed $12 million
in costs on just three farmers.
Mr. Chairman, I want to let Senator Chafee's comments when
the 319 program was enacted close for me. ``The primary role of
the Federal Government in the nonpoint program is to provide
financial assistance to the states, which are given the lead in
developing their own programs. It is not Big Brother from
Washington telling them how to do this. The states do this. We
give them the money to help them. We do not mandate it. Farmers
are not required to seek permission from the Federal Government
to carry out their farming practices.''
Thank you, Mr. Chairman.
[The prepared statement of Mr. Barrett can be found in the
appendix on page 143.]
The Chairman. Thank you very much, Mr. Barrett.
I will mention that a statement has been submitted by
Senator Coverdell and we will put that in the record with the
statements from other senators.
Let me begin the questioning because I believe my question
really has been formulated by all you have said and sort of an
understanding of where this may go. There is clearly a
difference of opinion with the administration panel and this
one on whether Congress really ought to enact something that is
more comprehensive or hits the problem of the TMDL, as opposed
to this development coming through regulation. And maybe that
is so and maybe that is not.
Well, one of the reasons for this hearing is that the
recommendations by Administrator Browner have set off enormous
controversies all over the country. As you mentioned, Ms.
Savage, you are unable to produce a director because they are
all testifying at state legislatures.
Now, maybe that sense has not reached Washington yet,
although Senator Lincoln has been talking about the massive
participation in her hearings, indicating quite a bit of
grassroots interest. That does not define the issue simply
because people are outraged or sad or concerned, but it does
indicate that this is not a settled situation and the law of
the land. We are continuing to work our way through it.
Now, as I listened to Ms. Browner this morning, she
mentioned, for instance, the Great Lakes and the Chesapeake Bay
as very large issues for our country and the thought that a
total management of these situations is very complex. Her
feeling was that the Great Lakes have been turned around, not
that the problem has been solved, and maybe the same for the
Chesapeake Bay. Most Americans probably recognize that, that
perhaps we are one Nation and we take a look at major problems
of this sort and this is very difficult.
Now, moving from these massive waterways then into
thousands of streams and rivers and so forth, of course, is
another problem, and here the rights of landowners, people who
are doing business, the Federal system itself, the rights of
states or however they fit into the Federal Government may make
this a lot more difficult.
So I sort of understand where Ms. Browner is coming from,
in a way. Obviously there must be some sense of frustration
that the TMDL program does not quite work, as it stands. And I
think Mr. Adler in his testimony was very helpful as a
proponent of TMDL, without going into an endorsement of Ms.
Browner's proposal or what Secretary Glickman had to say, but
that it is a comprehensive reduction and to have comprehensive
reduction, you take a look at where it is all coming from and
how you might make something of it.
Now, we are dealing, however, with law in which it appears
that there is dispute over the point source or the nonpoint
source and really what is provided, how much of this you can
do, how far you stretch it--I think at least this is in
contention. And it could very well be that by the time we
complete this issue, Senator Lincoln has offered a bill but
other senators are poised to offer all sorts of legislation
which, in fact, may finally clarify this. We may have a
different Clean Water Act by the time we are concluded with all
legislation.
What I think I sense is in a common sense way, Ms. Browner
hears this and has tried to work through, after the public
hearings and with Secretary Glickman and with others, some
reasonable rules of the road that will be least offensive to as
many parties as possible, try to mitigate some of the anxiety.
Certainly that was true in her comments about silviculture
today, that not many people are going to be affected by this,
but some, and it is not really clear altogether the criteria, I
suppose, except that Mr. Kraft said there are some bad actors
out there. And indeed there are and the common sense of the
American people has seen some of this from time to time and is
outraged and wants somebody to do something about it.
Now given all of this, are we on the right track? Mr. Adler
believes that we are with regard to the TMDL comprehensive
reduction idea to begin with and if we are, what sort of
legislative changes are going to be required? Or can this occur
through interpretation of the legislation, the major acts that
we have here? What sort of responsibility should this
committee, should the Senate undertake, given the whole lay-out
of the dilemma we have heard this morning?
Mr. Johnson, do you have an idea about this?
Mr. Johnson. Yes. First of all, I think there are some--and
I tried to articulate them in my written testimony--there are
two or three issues that I think need to be dealt with before
we go forward with whatever plan we have.
One is to get a better understanding of water monitoring.
We do not have a national effort on water monitoring. From what
I know, EPA does not have that, so each state is doing it
differently. Some states are not doing it at all. I seriously
question the whole issue of monitoring in interstate waters. As
you know, when we settled this land we laid a grid across it
and we are feeling sorry for doing that even today because it
does not fit nature.
Well, this program, the way we are laying it out, is sort
of a second grid. We are not escaping it; we are getting more
into it.
So I think----
The Chairman. To back up on that for a minute, now you are
saying, just for the sake of all of the audience, that water
monitoring differs markedly from state to state. What do you
mean by that? The measurements?
Mr. Johnson. The amount that we do, the mandates. In fact,
our 303(d) list is, in most states, dependent on the amount of
monitoring that we have done. Iowa has done very little until
this last year when we really got into it. I believe Kansas has
done a very good job, from my understanding of it. They have
1,500- or 1,600-waters on their list; we have 159. It is not
because theirs is more polluted than ours, I do not believe,
but we have very uneven monitoring across the country.
The Chairman. Well, how could you tell what the problem is
without there being some monitoring?
Mr. Johnson. That is a very good point. So you have that;
then you have an assessment of it. You have a different
approach to setting the standards across the country. I think
that these are basic, good, basic science questions that we
really need to get a better handle on.
I do not believe that--I am not here speaking against the
idea of targeting, as Mr. Adler has said, and the idea of doing
a budget of pollutants in impaired waters. I think that you
have to do that if we are going to really use our resources
wisely. But we are starting each state at such different levels
and nobody has blown a whistle and called time out and said,
``Let's get this right across the country and then let's go
forward.'' There is a real need for that, I believe.
The U.S. Geological Survey is perhaps a lead agency in
monitoring and I would urge you to take a look at perhaps
giving them additional resources and more responsibilities in
this role, particularly in monitoring.
The Chairman. Maybe this is not analogous but in the Clean
Air Act there seems to be somewhat more uniformity in
monitoring from the nonattainment cities to the attainment or
what have you, essentially the same rules of the game for
Chicago or Los Angeles or Indianapolis or what have you.
Mr. Johnson. Well, others could maybe comment more on this;
they may know the issue better than I. But I would guess that
if Iowa wanted to quit monitoring entirely--and we do not; we
want to do more--we could just do that and there would be no
impaired list except what would be imposed upon us, I suppose.
We would lose some 106 money, perhaps.
We have got to get a better handle, I think, and some
better standards nationwide on monitoring and a better
understanding of the science of what it tells us, as well,
especially with nonpoint.
The Chairman. Are you saying if Iowa stopped monitoring,
which you are not going to do but if you just stopped it, then
the TMDL does not work, or how does it work if you have no
monitoring?
Mr. Johnson. I suppose a drive-by look. In fact, we are
dealing with a list right now that is not based on real good
science but at least it is a start.
I think a lot of the frustration we all have with TMDL
right now is that suddenly we are really cranking it up and it
is being driven by litigation and I do not fault that, by the
way. I think sometimes to get us off of dead center, somebody
has to force it, and that is what is happening.
But we are developing TMDLs now based on a list that we
feel is very, very weak. It is not based on good monitoring. It
is based on a fisheries person driving by a shallow water, for
example, and saying, ``Gee, there is too much algae there.''
So there are certainly good programs in the country. I
would have to admit that ours is not, because of our past
history, but we are catching up.
The Chairman. Well, that is an important point because all
of us say on the one hand, all this is a problem but, on the
other hand, as you say, TMDLs are being driven by litigation.
People say this is outrageous and what is going to be done
about it? Now, the fact that there is no monitoring, no plan,
no one doing anything does not really assuage the public grief.
For example, the White River running through Indianapolis,
Indiana, source of enormous outrage presently because tens of
thousands of fish have died and continue to be dying. The
governor devotes much of the State of the State address trying
to talk about the fish dying in White River.
Now the fact is that I am not certain the governor has any
plan for this, although many people say they are still looking
for the source of the problem, but people do get outraged in
America. They are very concerned about the environment and
clean air and clean water are uppermost.
So balanced against our thoughts today about the Federal
Government overreaching, really the lack of monitoring or the
whole matrix that might be required to get there, is a public
demand for this and people who go after it have a lot of
political support, in addition to those who are saying, ``Hold
on now a moment,'' what Ms. Browner was saying today, a lot of
support, too, for holding on, walking around this.
Ms. Savage, you talk to these people every day in your
capacity who are out there on the firing line. What is the
balance between this? How do we meet the lawsuits, the public
outrage, the demands for standards that may or may not have
been established very well and may be extraordinarily different
really, state by state? What advice do you have not only to Ms.
Browner or Secretary Glickman but to the Congress, to this
committee to begin working on this?
Ms. Savage. Let me address your first point, Senator, that
the public is outraged, and rightfully so, in many ways. When
Mr. Ruckelshaus came to the Agency in 1971 he made some very
clear--I remember seeing him now--very clear directions to the
EPA and to the states, specifically we were to focus on what
was called point sources in two areas.
One was the construction of wastewater treatment
facilities, and $5 billion a year was going to build sewage
treatment plants. And the other was the bad actors in the
industrial sector. The intent was to move to a permitting
system for all point sources of discharges.
The 208-program, which was the original precursor to the
nonpoint 319-money, was a planning exercise and literally
ignored by many in the Agency. Billions of dollars went into
cleaning up point sources. It is taking us 30-years to do that
and for the most part, we are fairly comfortable with the
successes achieved in the point source arena.
On the other hand, it is like the onion. The more you clean
up and the more layers of the onion that you discover, the more
you understand how difficult this process is. Most of us
thought when you clean up the raw sewage in the streams and you
get those industries under control, voila, your water is
cleaner. Well, that has not necessarily been the case.
On the other hand, as Ms. Browner said, there are all these
standards that people are not meeting. That is assuming that
the standards are the same as they were in 1972; they are not.
It seems that every time we attain standards, then we raise the
bar and, of course, we are not going to be in consistent
compliance with the standards because we are always learning
more and changing them.
I would not give any advice to Ms. Browner or Mr. Glickman.
I am just glad I am not in their shoes, to be perfectly honest.
These are very, very tough issues and TMDLs are very, very
important. I think that because of the suits, as Paul has said,
there is a new energy. About 10-years ago we were all saying
clean water is a boring program and it is not very sexy. Well,
it is pretty sexy now, and TMDLs has been in the middle of
that, but TMDL's aew not the whole program. It is a way to do
the water budget, as Ms. Browner indicated. But the budgeteers
do not enforce; they do not regulate; they develop the budget,
and that is what we need to be doing here.
With regard to the implementation plan, it is not that we
do not think nonpoint sources are important; they are; they are
critical. Our association came up with the first national
analysis of nonpoint sources back in 1985 and at that time we
said it was 50-percent of the remaining problems. State
administrators cannot say it is 50-percent of the problem and
say, ``No problem with nonpoint sources.'' That is
inconsistent. But the way we go about implementation and the
time frames that we go about cleaning the program or getting to
that end point of clean water is what is under debate. Whether
EPA has the statutory authority is under debate.
Implementation plans--we feel very strongly, as Bob does
and as Chuck does and as Carol does, that implementation plans
need to be part of this. The question is do they need to be
submitted and approved by EPA? We do not think so. Perhaps an
outline of what the implementation plan will include--we have
discussed this with the agency specifically--an outline of what
that implementation plan would hold and then, after the TMDL is
approved, to go back with your public and develop the
implementation plan using existing authorities. We are very
comfortable with that approach and EPA seems to be at least
willing to discuss it.
We want to delete the threatened waters category, because
there is just no way to deal with this. Every water in the
United States is threatened by something. But when we put
threatened waters in this regulation, then you multiply 40,000
number--totally beyond our belief. EPA cannot expect that. So
if you delete the threatened waters category, it might be
doable in some regard.
The offset provisions are very troubling. Again
philosophically, we agree with the concept. If you are going to
pollute a waterway and there is a way to get 1.5 out, then you
should do that, but how do you do it? You know,
philosophically, it makes some sense but most folks in the
field do not know how to make that happen.
We need a very clear delisting process. As Paul said, some
of the states' lists were just developed by EPA, by drive-bys.
That is inadequate. That is inappropriate, and a lot of the
listings were done to get 319-money. They did not think much
about implementation and enforcement associated with TMDL's.
Those lists need to be cleaned up. And we need a very clear
delisting process to do that. I could not agree more with Paul
on the monitoring. The monitoring is not there for States to do
what they need to do in 303(d).
We come before you year after year and argue for money for
the monitoring program, try to tell you what we have done in
30-years of clean water and what is the first thing that
happens? Our monitoring money is cut. USGS is cut. That makes
no sense. If Congress and the public want accurate data, we
need to ask the appropriators to make sure there is money and
appropriate strategies for monitoring.
And lastly, we need to integrate our 303(d), the TMDL
program, with our 319 nonpoint source program and our 305(b),
which is our reporting program. We need to report to you on a
regular basis what is going on in these programs. They should
not be separate. We should coordinate them into a comprehensive
approach that, in fact, does what we are asking--a budget that
is a plan and then report to Congress on how we are doing.
Fifteen years is not going to do it.
The Chairman. Well, that is a good list of very sensible
suggestions. Have these all been made to Ms. Browner and her
associates at some point? I presume----
Ms. Savage. Oh, yes, Sir.
The Chairman. So you are reciting really on the basis of
having done this before.
Ms. Savage. Well, as Mr. Kraft said, there were 32,000
comments to EPA, of which I understand 15,000 were from the
forestry industry and the remaining were across the board, very
substantive for the most part, and I think you will find that
the comments that I have outlined here are reflected in a large
majority of those comments.
The Chairman. Mr. Kraft, you commented in your testimony
that the legal basis is not here or not quite here for much of
what was being suggested, and you have heard the comments of
others--Mr. Adler, who believes that the TMDL program, at least
in general, may be a good way to proceed, that we are not able
to monitor what we are doing now, but in part, that is because,
as Ms. Savage so kindly mentions, money is not often
appropriated and that, I suppose, does not happen totally by
chance. A lot of people do not want to monitor these things in
life. There is resistance to monitoring dirty air over cities
from time to time but finally we do this and report it and it
has ramifications that are difficult politically. When you
begin to get all this data it is good for social scientists but
sometimes not for the practitioners who are out there.
What comments do you have, Mr. Kraft, having listened to
all this conversation at this point, that would clarify your
position or where we ought to go?
Mr. Kraft. There are a whole host of things, I think, in
your question. I do not think, on your first point about the
lack of authority, I think the legislative history and EPA's
own interpretation of the statute consistently over a long
period of time, I think, makes it pretty clear that there is
not authority in the current statute for what is being
proposed.
As to the second part of your question about TMDLs perhaps
being a good thing and being in the statute, I think it is
clear, and no one really disagrees with this, that there is a
requirement to do a TMDL budget for impaired watershed and it
is clear the states do not have the money to do it on the time
line they are being ordered by the courts. And I think there
probably is some benefit to having a budget.
The question really comes down to then what is the way that
you take that budget and translate it into something that is
workable for the vast array of nonpoint source activities?
I think for our company we are strong believers in adaptive
management. We do that in our own plans, our habitat
conservation plans, and I think that kind of approach to 319 is
what is needed here.
I think rather than trying to regulate through permits
things that really cannot be done, the way you do it is through
more money for monitoring, and we definitely need that, and
then take a look at your BMPs and are they doing what you think
they are supposed to be doing? Get some scientific data that
shows whether those BMPs are effective or not.
We need, rather than this regulation, I think what we need
is a study to find out what is the problem out there with
silviculture, if any? Is it really as big an issue as some
would have you believe? I happen to think that that is not the
case but perhaps we should put off a massive change in
regulation until we can really understand what the problem is.
But I do think that even if there is a problem out there
and we find out what it is with better data, the way you
approach that is through best management practices because that
will lead to better water quality. And the best example I can
give is our own habitat conservation plan, which is, in
essence, a collective set of best management practices. It
includes putting buffers around streams, repairing roads that
were not built up to modern standards. It means grazing best
management practices, fencing off cattle from streams where
that is needed.
It is a whole host of things that when you think about and
work it, once you set some guidelines out there for resource
managers, you will be impressed, I think, with the dedication
that people who work the land, who know the land, they want to
protect these resources and they will.
So I think rather than having to get into a permitting of
every single thing, we can create, through an adaptive
management process, better BMPs.
The Chairman. As you know, most of the protest of the EPA
idea come from the silviculture area, from forestry. Trying to
think through, and you are someone who knows about this, why is
silviculture likely to come under fire at any point? If you
think of lots of small plots with trees on them, it is hard to
figure that, but I gather when Ms. Browner was talking about
the bad actors, there are very large lumbering interests who
impact upon streams and waterways in various ways, foul up the
water in some fashion.
Now, what is to be done about this where there seem to be
outrageous situations, and what does the industry do about it
now?
Mr. Kraft. I think there are a couple of answers to that. I
would think you would find among the vast majority of our
members in AP&PA that they are exactly the opposite. They are
responsible stewards of the land.
One of the things that the industry has done is, I think,
have a code of conduct that they have implemented through the
Sustainable Forestry Initiative Program, a commitment to clean
water. I think you see many of the large timber companies
around the country doing habitat conservation plans.
So I think there is a lot going on already under the
voluntary programs that we have to protect clean water.
The Chairman. Well, what if somebody in the far west sees a
stream or river and they believe that things are really being
fouled up by somebody in the lumber or timber industry and they
file suit and say somebody has to stop all this? Isn't this a
part of the reason we are having the argument as Ms. Browner
comes forward with this?
Mr. Kraft. Mr. Chairman, I would say that the states are
very active in enforcing those standards now. If we were to
cause a problem on our land, if we violated the best management
practices or the streamside management zone and caused
pollution in a stream, we would be called into court
immediately. I think there is ample enforcement authority under
the current act and the states and EPA have that enforcement
authority today.
The Chairman. Now Mr. Barrett, from the standpoint of the
farmers, it does not matter whether we are talking about EPA
today; whenever we talk about EPA, there are problems. In fact,
I think some have said sometimes we have price problems and
those are very severe. the Committee has been talking about
that all the time. But problems with EPA supersede that almost
every time in terms of getting a turn-out of people.
Now in this particular area, whether farmers are exercised
or not, I am trying to gather your view as to how those views
fit into a total management plan for a waterway or lakes and
streams and what have you. In other words, really most of the
protests on this, as I stated, I think, accurate, have come
from people in forestry, although there have been long-running
arguments with dirt farmers and other people who are involved
in agriculture with regard to EPA. But on this specific
argument today, could you restate what the objections are as
you see it from farmers other than foresters?
Mr. Barrett. Well, Mr. Chairman, with all the good work you
do here on the Committee to try to keep us in business, you
talked earlier about the crop insurance mark-up and for us to
have the most important asset we own, which is our land,
threatened by a Federal regulatory take-over is something that
really has not sunk in on the greater agriculture community out
there yet. I do not think the pendulum has swung to the degree
it has with the silviculture folks, but that is going to
change. And that is why we are trying to deal with it as
proactively as possible down at the county level to try to get
the real row crop farmers involved in the TMDL process.
The largest issue I think that we have to get across to
policymakers is that when you deal with land management
practices like BMPs, and that is what we have with the help of
NRCS to manage our nonpoint source run-off, we can have an
effective program that leads to water quality improvements over
time.
But when you put BMPs into a water quality-based program,
like the TMDL program, just the mere BMP by itself is not
enough. You have to ratchet your BMPs without regard to whether
or not they are practicable or feasible or whether or not you
are making any money.
The BMP might be you take the south 100-acres out of
production and plant grass on it. That is not something that
American agriculture is going to be able to comply with. That
is why my testimony to you is that in order to, in a
cooperative way for us to move forward with the states and
improve water quality, we need to work with the BMP program
that you in Congress passed for us, Section 319, along with all
of our other partners--the NRCS and USDA--and actually get
something done on the ground.
I think that is the real thing that needs to be changed. We
in agriculture need to take back Section 319 from EPA and make
it into an action-oriented program that improves rural nonpoint
source water quality, rather than what it basically is now,
which is just a process program where they go around counting
septic tanks and such things as that. That is probably the
number one thing that we could do to really make a difference
out there.
And I agree with all the other statements about monitoring.
The drive-by monitoring problem that we have in the TMDL
business right now is horrendous. The state of Idaho ended up
with 962 drive-by monitored waters on its list. The state of
Oklahoma--I have a paper trail on that one. In 1992 the state
of Oklahoma turned in a 303-list with about 20-waters on it.
EPA made them put on 80-nonpoint source only waters that were
just potentially threatened. They were on another list
somewhere but nobody knew why they were on the list. Then, 8-
years later, the state was asking EPA to take them off the list
and they said, ``Well, even if you had no data to put them on
in the first place, you cannot take them off unless you have
data.''
So in a nutshell, Mr. Chairman, we need to have better
science behind this process and we need to put BMPs into a
process where they can be allowed to work.
The Chairman. I think you have emphasized correctly what is
a fear, at least, of many farmers of the arbitrary aspects of
this or that a good part of a farm might be sacrificed for the
greater good. There is some possibility always hopefully in our
courts of law for due process and working out before you are
bankrupted arbitrarily but a good number of farmers feel they
have been dealt with in this way. So it is timely that we hear
that again because it is a part of the argument.
Mr. Adler, your testimony has been characterized by me so
many times, it is only fair that you have a chance at least to
make certain that it remains. But having heard what you have
heard, do you have a first comment?
Mr. Adler. I actually appreciate your characterization of
my testimony, which I think was fairly accurate.
But I do want to respond to some of the things that have
been said. First, your opening question, which is whether or
not this committee or the Congress as a whole needs to take
action on the statute, and I do not think you do. I think that
EPA is well within its legal authority within the regulations.
There are some legal issues at the margins here that I am
sure are going to be litigated, but that is true of every
single regulation that EPA has ever promulgated and undoubtedly
every regulation that it will promulgate in the future, and
that is the role of the courts to decide that.
I do agree that Congress should help, can help by
increasing dollars for monitoring and implementation of the
TMDL program. You are used to hearing that. ``Don't do anything
but send me more money'' is, I think, the message, but I think
it is true. And the FACA committee was also unanimous in its
recommendation for more monitoring and better monitoring.
But in response to John Barrett's concerns, what we need is
good science, not perfect science, and Congress acknowledged
that in 1972 when it said that TMDLs ought to be set with a
margin of safety, taking into account seasonal variations and
the uncertainty inherent in the process. If we wait for perfect
science, I would submit that the next generation of all of us
will be in this room in 30-years talking about the very same
issues. We need to act on good science but the best available
science and to move forward.
I think it is important to take an historical perspective
here because there is a bit of a misimpression that EPA all of
a sudden launched this TMDL missile, and that is not what
happened at all. Congress adopted the TMDL program in 1972 and
the problem is that it was never implemented except in the
breach. What catalyzed the activities over the past several
years was a rash of citizen suits around the country in which
groups complained that this legitimate and useful program had
never been implemented and the courts, by and large, agreed. In
fact, many of the courts expressed some shock at the slow pace
or lack of pace with which this program had been implemented.
What EPA tried to do through the FACA committee and its
rule-making process was to try to make some sense of the
program and to try to make it workable. As just one example, we
had courts saying that states ought to write their TMDLs in 5-
years and the FACA committee recommendation was to move that to
15-years and I would note that there were four state
representatives on the Committee who agreed with that
representation or that recommendation.
What EPA has done I think is the reasonable conservative
middle ground. If Congress were to act, it would consider two
other courses. One is to maintain the status quo but to get rid
of the TMDL program, and I think we all agree that the status
quo has not worked. Congress can throw more money at the
nonpoint source and farm bill programs, but you legitimately do
not like to simply throw money at a problem without knowing
that the money is being spent wisely.
The other course on the other side is to regulate nonpoint
sources and to treat them like we do point sources. There may
be a day that comes where we will decide that we have to do
that but in the meantime, the TMDL process is the reasonable
middle ground and I think we ought to give it a shot.
The Chairman. Is there any further comment from the
panelists?
Ms. Savage. Mr. Chairman, I would like to add to that. Is
there a role for Congress? I think there is. There is always a
role for Congress in the statutes that they pass. And it may
well be time for us to have a regulatory nonpoint source
program, an enforceable program that might include
acknowledgment of the BMPs and the good actors that are out
there doing it right and that are moving forward. We at ASIWPCA
do not want to interfer with that or undermining their efforts.
But, as Ms. Browner said, there are bad actors out there and
maybe it is time that we say look, you have X amount of time to
do it right and if you are a habitual wrong doer, then we ought
to have something that is more enforceable and puts you on par
with a point source that is not doing what it is supposed to be
doing.
So I think in that, Bob and I agree. On the other hand, to
say that there are only two options--status quo or go with
these regulations--I do not think that that is accurate. We
could modify these regulations based the comments and there
have been, as we said, 32,000 comments. EPA has more than its
hand full in going through all of these recommendations. There
are many, many good comments. We can modify these regulations
and get into the debate on nonpoint sources here in the
Congress where it needs to be.
The Chairman. Well, I thank all of you for your testimony
and likewise for being so forthcoming in your responses to the
chair and to each other.
The hearing is adjourned.
[Whereupon, at 12:01 p.m., the Committee adjourned.]
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A P P E N D I X
February 23, 2000
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DOCUMENTS SUBMITTED FOR THE RECORD
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QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD
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