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67–049 PDF 2012

RUNNING ROUGHSHOD OVER STATES AND 

STAKEHOLDERS: EPA’S NUTRIENTS POLICIES 

(112–39) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 24, 2011 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

FRANK C. GUINTA, New Hampshire 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

CHARLES J. ‘‘CHUCK’’ FLEISCHMANN, 

Tennessee 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

(II) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington, 

Vice Chair 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

JOHN L. MICA, Florida (Ex Officio) 

TIMOTHY H. BISHOP, New York 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

RUSS CARNAHAN, Missouri 

DONNA F. EDWARDS, Maryland 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

JASON ALTMIRE, Pennsylvania 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

MAZIE K. HIRONO, Hawaii 

NICK J. RAHALL II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vii 

TESTIMONY 

Biggs, Barbara, Government Affairs Officer, Denver Metro Wastewater Reclamation District, representing the National Association of Clean Water 

Agencies (NACWA) .............................................................................................. 70 

Budell, Richard J., Director, Office of Agricultural Water Policy, Florida Department of Agriculture and Consumer Services .............................................. 70 

Card, Bethany, Director of Water Quality Programs, New England Interstate 

Water Pollution Control Commission (NEIWPCC) ........................................... 70 

Elmaraghy, George, P.E., Chief, Division of Surface Water, Ohio Environmental Protection Agency .................................................................................... 70 

Opper, Richard H., Director, Montana Department of Environmental Quality, 

representing the Environmental Council of the States (ECOS) ....................... 70 

Stoner, Nancy K., Acting Assistant Administrator, Office of Water, United 

States Environmental Protection Agency .......................................................... 70 

Sullins, Coleen, Director, Division of Water Quality, North Carolina Department of Environment and Natural Resources, representing the Association 

of State and Interstate Water Pollution Control Administrators 

(ASIWPCA) ........................................................................................................... 70 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Mica, Hon. John L., of Florida ................................................................................ 98 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Biggs, Barbara ......................................................................................................... 99 

Budell, Richard J. .................................................................................................... 121 

Card, Bethany .......................................................................................................... 124 

Elmaraghy, George, P.E. ......................................................................................... 130 

Opper, Richard H. .................................................................................................... 137 

Stoner, Nancy K. ...................................................................................................... 141 

Sullins, Coleen ......................................................................................................... 170 

SUBMISSIONS FOR THE RECORD 

Bishop, Hon. Timothy H., a Representative in Congress from the State of 

New York, request to submit statements of additional testimony from the 

following organizations into the record: 

Surfrider Foundation ....................................................................................... 7 

Nine member organizations of the Mississippi River Cooperative ............... 9 

Sierra Club ........................................................................................................ 14 

Earthjustice ....................................................................................................... 18 

East Coast Shellfish Growers Association ...................................................... 35 

Pacific Coast Shellfish Growers Association .................................................. 38 

Puget Sound Restoration Fund ....................................................................... 42 

Mr. Ben Williams, Owner, Fisherman’s Dock Seafood Market in Florida .. 44 

Chesapeake Bay Foundation ........................................................................... 46 

Des Moines Water Works ................................................................................ 49 

Sixty-eight member organizations of America’s Great Waters Coalition .... 55 

Gibbs, Hon. Bob, a Representative in Congress from the State of Ohio, request to submit the following into the record: 

Statement of William Dever, President, Florida Gulf Coast Building and 

Construction Trades Council ........................................................................ 60 

Page

VI 

Gibbs, Hon. Bob, a Representative in Congress from the State of Ohio, request to submit the following into the record—Continued 

Letter regarding numeric nutrient criteria to the Honorable Lisa Jackson, 

Administrator, U.S. Environmental Protection Agency, from 50 national 

and multistate organizations, and municipal, corporate, and regional 

entities, June 23, 2011 ................................................................................. 65 

Stoner, Nancy K., Acting Assistant Administrator, Office of Water, United 

States Environmental Protection Agency, request to submit into the record 

the report entitled, ‘‘An Urgent Call to Action—Report of the State-EPA 

Nutrient Innovations Task Group,’’ August 2009 ............................................. 72 

United States Environmental Protection Agency, responses to questions from 

the Subcommittee on Water Resources and Environment ............................... 149 

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(1) 

RUNNING ROUGHSHOD OVER STATES AND 

STAKEHOLDERS: EPA’S NUTRIENTS POLICIES 

FRIDAY, JUNE 24, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON WATER RESOURCES

AND ENVIRONMENT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:38 a.m., in room 

2167, Rayburn House Office Building, Hon. Bob Gibbs (Chairman 

of the subcommittee) presiding. 

Mr. GIBBS. We will start the hearing for the Water Resources 

and Environment Committee of T&I today, a hearing regarding nutrient management and nutrient policies of the EPA. 

I would like to welcome everyone to the hearing today. We are 

meeting to examine the Environmental Protection Agency’s policies 

for controlling nutrient pollution in water bodies. The focus of this 

hearing is not about whether nutrients may be a problem in some 

water bodies around the Nation. It is well documented that nutrients can change conditions in some waters. Rather, the focus of 

this hearing is on the process, specifically how the Federal EPA is 

addressing the issue of nutrients in consultation with the States 

under the Clean Water Act. I really want to emphasize this is really about the process and the collaboration between the Federal 

Government and State governments. 

Congress wrote the Clean Water Act almost 40 years ago with 

the vision that the Federal Government and the States would be 

equal partners in solving the Nation’s water pollution problems, 

and for many years the Federal and State partnership has worked 

well in addressing issues under the Clean Water Act. However, 

most recently we have seen a substantial change in the approach 

by EPA. This heavy handed approach is now jeopardizing the balance between the Federal and State partnership that had long existed under the Clean Water Act. 

EPA is now insisting on imposing its Federal will on States with 

a Federal, top down, one-size-fits-all approach to water quality regulation that is taking away the flexibility that States need to address their water quality issues. EPA’s continued insistence on pursuing its own radical agenda is once again evident as it bullies 

States to adopt extreme and arbitrary nutrient policies. A one-sizefits-all approach is not workable or reasonable for different waters 

in an individual State, much less 50 States with their own unique 

biology, environmental characteristics. 

2 

Washington, DC, cannot and should not decide what is best for 

the States. The Clean Water Act calls on States to establish water 

quality standards for their water bodies. The standards that States 

adopt are subject to approval or the disapproval of the EPA, giving 

the Agency the final word in their adequacy. 

States traditionally have adopted narrative standards that would 

give them flexibility in protecting is State waters from excessive 

nutrients. However, EPA has begun pressing States to adopt a onesize-fits-all numerical nutrient water quality standards for their 

waters, which will take away the flexibility that States need to address the various water quality issues. 

The EPA’s nutrient policies will subject waters all across the Nation to rigid, scientifically questionable standards that are set at 

levels more stringent than necessary to protect most State waters 

and will result in cost and economic impacts for the States and the 

regulating community to comply with the standards that are substantially more than are needed to protect the water quality. 

The subcommittee today will hear about the efforts many States 

have undertaken to address excessive nutrients in their waters, review how the EPA recently second-guessed the State of Florida’s 

work to develop numerical nutrient standards for the State’s waters when the EPA promulgated Federal nutrient standards in 

Florida, and examine the impacts that the EPA’s policies are having in Florida and the other States. 

In a departure from typical subcommittee hearings today’s witness panel all come from the public sector. These public sector entities are at times the regulator and at other times are the regulated. Most are speaking not just for their own State or local public 

utility but for national associations and for all who hold similar positions in other States and localities. 

It is not big oil, it is not big coal or even big enviro or any other 

big business. Many of our witnesses today work directly for Governors, both Democrat and Republican, who are elected by the people of their State to look after their welfare and the State’s resources, including the quality of their State’s waters. 

I think it is important to note that those who are tasked most 

directly with protecting the waters of the United States are represented here today, and they are saying that in some respects 

their ability to do their job is being threatened by the policies of 

the Federal EPA. 

We need to restore the partnership of the States and the EPA. 

That is why I am pleased to join Chairman Mica and Ranking 

Member Rahall and other Members from both parties in introducing H.R. 2018, the Clean Water Cooperative federalism Act of 

2011. This bill preserves the role and the rights of States as they 

make important decisions of land and water use within their jurisdictions. 

I was surprised that the so-called legal analysis that the EPA 

provided on H.R. 2018, first that it read more like an advocacy 

piece than a legal analysis, and second how it illustrated what little regard the EPA has for the Army Corps of Engineers. Clearly 

the EPA doesn’t care any more for its sister agencies than it does 

for the States. This is just another example of dysfunctional administration and an EPA that is out of control. 

3 

I especially would like to welcome George Elmaraghy, who is the 

Chief of the Ohio Environmental Protection Agency’s Division of 

Surface Water. He is a professional engineer and has more than 30 

years’ experience in water quality development and implementation. We welcome you to today’s hearing, and I welcome you first 

because I am from Ohio and you are from Ohio, so great to have 

another Buckeye here. 

Now I yield to Ranking Member, Mr. Bishop, for any remarks 

you may have. 

Mr. BISHOP. Thank you, Mr. Chairman, and thank you very 

much for holding this very important hearing today, shining a spotlight on the significant impacts cause by nutrient pollution in the 

United States. High nitrogen and phosphorus loading, otherwise 

known as nutrient pollution, is a widespread problem with severe 

economic and public health repercussions. Virtually every State 

and territory in the United States is impacted by a nutrient-related 

degradation of their waterways. These impacts include harmful 

algal blooms, reduced spawning grounds and nursery habitats for 

many of our important fisheries, frequent fish kills, dead or hypoxic 

zones that are starved of oxygen and devoid of marine life, and 

public health concerns related to nutrient contaminated drinking 

water sources and increased exposure to toxic microbes. 

In fact in many areas of the country States are forced to issue 

warnings to prevent any contact with nutrient polluted waters. In 

the St. John’s River in Florida, for example, nutrient pollution results in swaths of green slime that fill back channels and blanket 

miles of shoreline, devastating aquatic life. Fishermen on the river 

report that the seafood they can catch is often shunned by customers concerned about safety. At the same time homeowners and 

recreational boaters have no interest in swimming or boating in 

this green slime, nor should they. 

Or as our witness from the Ohio EPA can no doubt talk about 

today, the largest inland lake in the State, Grand Lake St. Mary’s, 

is a popular State park for fishers and boaters. Nutrient pollution 

has become so severe there that last July his Agency issued a 

warning against all contact with the lake by people, pets and even 

boats. In addition, the Agency recommended that no fish from the 

lake be consumed. These warnings were reissued in May of this 

year. 

Even more well-known is the Gulf of Mexico dead zone which affects a stretch of ocean from the mouth of the Mississippi to Texas 

and is also caused by excessive nutrients. Earlier this month the 

United States Geological Survey estimated that the dead zone in 

the Gulf from nutrient pollution would measure between 85 and 

9,400 square miles, the largest to date. 

To someone from New York such as me, these are all too familiar 

stories. The most serious water quality problem in the Long Island 

Sound is hypoxia, resulting from excessive nitrogen runoff. In 2007 

hypoxia in the Sound lasted for 58 days and at its peak effected 

162 square miles. While the size of the hypoxic zones fluctuate 

from year to year, its duration appears to be getting longer, not 

shorter, with significant impacts to fisheries, fishermen, and our 

water quality. 

4 

The problems of nutrient pollution are not unique to these regions. As I mentioned, all but two States have waters that are impacted by nutrient degradation and more than 15,000 such waters 

had been identified nationwide. 

In short, Mr. Chairman, the scope and severity of nutrient pollution cannot be over emphasized. For all of these reasons in May of 

2007 Benjamin Grumbles, then the EPA Assistant Administrator 

for Water in the Bush administration, issued a memo regarding 

nutrient pollution and numeric water quality standards while recognizing that many States and territories had made significant 

progress in establishing numeric nutrient standards. He also called 

upon the States and territories to take bold steps to, ‘‘Accelerate 

their efforts and give priority to adopting numeric and nutrient 

standards.’’ 

Since then the EPA has collaborated with the States on a nutrient task force to evaluate the science, sources and economic impacts of nutrient pollution and develop recommendations for controlling the impacts on our economy and on our water sources. 

In March of this year EPA issued a memo regarding additional 

efforts planned to work in partnership with the States—let me say 

that again—in partnership with the States to address these problems. In addition, Administrator Jackson stated quite definitively 

that contrary to the claims that had been made by some that the 

EPA is not working—again I will repeat—not working on Federal 

numeric nutrient limits that it plans to impose as a mandate on 

the States. 

I support these collaborative efforts and appreciate the Administrator’s comments. I believe it is critical that the EPA and the 

States continue to move forward together in their efforts to address 

the growing public health risks and economic impacts of nutrient 

pollution. In my view, this is not about either the EPA on the 

States being good actors or bad actors, but about finding the right 

balance between the science, the implementation of effective and 

reliable nutrient controls, and ensuring the highest level of protecting human health and the environment. That is the charge this 

Congress gave the Agency and the States almost 40 years ago and 

one that the American public continues to support today. 

I also believe we in the Congress have a role to play. For that 

reason I and many of my colleagues from the region recently reintroduced H.R. 2110, the Long Island Sound Improvement Act 

Amendments of 2011. That bill is intended to improve the water 

quality of Long Island Sound with a particular focus on reducing 

nutrient pollution using a wide range of innovative tools and approaches. 

So again, Mr. Chairman, thank you for highlighting the very serious and growing problems of nutrient pollution in U.S. waters. I 

look forward to hearing from our witnesses on their plans to address this problem and how we can all collaboratively support these 

efforts. 

Before I yield back, I ask unanimous consent to enter into the 

record statements of additional testimony from the following organizations: The Surfrider Foundation; the nine member organizations that joined with the Mississippi River Cooperative; the Sierra 

Club; Earthjustice; East Coast Shellfish Growers Association; the 

5 

Pacific Coast Shellfish Growers Association; the Puget Sound Restoration Fund; the testimony of Mr. Ben Williams, Fisherman’s 

Dock Seafood Market in Florida; the Chesapeake Bay Foundation; 

the Des Moines Water Works; and the 68 member organizations 

that joined with the America’s Great Waters Coalition. 

Mr. GIBBS. So ordered. 

[The information follows:] 

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Mr. BISHOP. Thank you very much, Mr. Chairman, I yield back. 

Mr. GIBBS. Before I introduce the witnesses, I ask unanimous 

consent that Mr. Southerland and Mr. Guinta be allowed to sit on 

the committee today and participate, full members of the T&I. 

And also I want to ask unanimous consent the statement of William Dever of the Florida Gulf Coast Building and Construction 

Trades Council be included in the record for today’s hearing. Mr. 

Dever’s testimony expresses the affiliated unions’ opposition to 

EPA’s costly numeric nutrient criteria for Florida. 

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Mr. GIBBS. In addition, I have a letter signed by 50 State municipal industry and agricultural representatives that express deep 

concerns about the direction EPA is taking regarding numeric nutrient criteria. I ask unanimous consent that it be made part of the 

record for the hearing today. So ordered. 

[The information follows:] 

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Mr. GIBBS. Let me read one section of the letter: ‘‘EPA’s insistence that the State must develop independently applicable numerical nutrient criteria for all water bodies, even in the absence of 

cause and effect relationship between the nutrient level and 

achievement of decimated uses. It is not scientifically defensible 

and is undermining innovative State approaches to reducing nutrient pollution. Continued controversy among EPA, States and the 

regulatory community over EPA’s approach to nutrients is slowing 

progress towards reducing impairments associated with the excess 

nutrients.’’ 

That is a quote from this letter. Today we are going to hear 

about these innovative State approaches that may be stymied by 

EPA’s inflexible approach. 

I want to introduce our witnesses. I will go through and introduce them and start at the end. Today I welcome Ms. Nancy Stoner, who is the Assistant Administrator of Office of Water, the U.S. 

EPA. 

Next to her is Mr. Richard Opper, Director of the Montana Department of Environmental Quality and also representing the Environmental Council of States. 

To his left is Ms. Coleen Sullins, Director of Division of Water 

Quality, North Carolina Department of Environmental and Natural 

Resources, representing the Association of State and Interstate 

Water Pollution Control Administrators. 

Ms. Bethany Card, Director of Water Quality Programs in New 

England Interstate Water Pollution Control Commission. 

Mr. George Elmaraghy—I am going to struggle with that—Chief, 

Division of Surface Water, Ohio Environmental Protection Agency. 

Mr. Richard Budell, Director, Office of Agricultural Water Policy 

at Florida Department of Agriculture and Consumer Services. 

And finally, Ms. Barbara Biggs, Government Affairs Officer of 

the Denver Metro Wastewater, representing the National Association of Clean Water Agencies. Well, welcome and thank you for 

coming today and traveling all the way to DC. 

Ms. Stoner, welcome, and the floor is yours. 

70 

TESTIMONY OF NANCY K. STONER, ACTING ASSISTANT ADMINISTRATOR, OFFICE OF WATER, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; RICHARD H. OPPER, DIRECTOR, MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, REPRESENTING THE ENVIRONMENTAL COUNCIL OF 

THE STATES (ECOS); COLEEN SULLINS, DIRECTOR, DIVISION 

OF WATER QUALITY, NORTH CAROLINA DEPARTMENT OF 

ENVIRONMENT AND NATURAL RESOURCES, REPRESENTING 

THE ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS (ASIWPCA); BETHANY 

CARD, DIRECTOR OF WATER QUALITY PROGRAMS, NEW 

ENGLAND INTERSTATE WATER POLLUTION CONTROL COMMISSION (NEIWPCC); GEORGE ELMARAGHY, P.E., CHIEF, DIVISION OF SURFACE WATER, OHIO ENVIRONMENTAL PROTECTION AGENCY; RICHARD J. BUDELL, DIRECTOR, OFFICE 

OF AGRICULTURAL WATER POLICY, FLORIDA DEPARTMENT 

OF AGRICULTURE AND CONSUMER SERVICES; AND BARBARA BIGGS, GOVERNMENT AFFAIRS OFFICER, DENVER 

METRO WASTEWATER RECLAMATION DISTRICT, REPRESENTING THE NATIONAL ASSOCIATION OF CLEAN WATER 

AGENCIES (NACWA) 

Ms. STONER. Good morning, Chairman Gibbs, Ranking Member 

Bishop, and members of the committee. I am Nancy Stoner, Acting 

Assistant Administrator for Water at U.S. EPA. 

Nutrient pollution is one of the greatest water pollution challenges being faced by communities across the country. Nutrients 

such as nitrogen and phosphorous pollution pollute the waterways 

in which our families fish and swim, contaminate our drinking 

water supplies, and cause illness and impact the economic health 

of businesses across the Nation that rely on clean and safe water. 

We all recognize the value of clean water. Clean water is not 

simply a resource and asset to be passed on to our children, but 

is an essential part of life. Clean water is an essential component 

of public health. Our drinking water supplies and the welfare of 

our families and communities whether in large cities, small towns 

or rural America. 

The economic health and growth of businesses, large and small, 

and the jobs they create rely upon a high-quality and sustainable 

source of clean water. The range of businesses include tourism, 

farming, fishing, beverage production, manufacturing, transportation and energy generation, to mention a few. 

Nutrient pollution is having significant impacts on our Nation’s 

economies and the health of our communities. Let me provide a few 

examples. 

In Ohio, Grand Lake St. Mary’s, a large drinking water supply 

and historically popular recreation area, has suffered over the last 

several years from harmful algal blooms caused by increasing loads 

of nitrogen and phosphorous. As a result small businesses like marinas and restaurants are closing, the local tourism economy has 

suffered, and local small businesses have become eligible for lowinterest disaster loans. 

This summer pollution again threatens the health of the lake’s 

visitors and economy. The Ohio Department of health issued a 

warning on May 19th to community residents and visitors against 

71 

using the lake because of harmful algal booms known to produce 

toxins. 

EPA through the 319 9-point source program is working closely 

with the State of Ohio on a restoration plan for the lake. 

In the State of Florida, the Caloosahatchee River, which runs 

less from Lake Okeechobee to Fort Myers, is currently suffering 

from dangerous algal blooms caused by excess levels of nutrients. 

Residents complained of noxious odors. The local health department is warning residents not to swim in the river or eat fish 

caught from the Caloosahatchee. 

Red tides, blue green algae, dead zones. We are seeing problems 

like these, graphic examples in the U.S. every summer. In many 

of these water bodies not only is it not safe to swim, it isn’t safe 

to let your dog swim. 

Nutrient pollution can also pose a risk to the water we drink. 

High levels of nitrate in drinking water have been linked to serious 

illness in infants and other human health affects. Reported drinking water violations for nitrates have doubled in the last 8 years. 

Some public water systems have had to install costly treatment 

systems to reduce nitrate levels. These systems can cost millions of 

dollars. 

A 2010 study by the U.S. Geological Survey identified particularly high levels of nitrates in shallow drinking water wells in agricultural areas in the United States. Twenty-two percent were 

above the maximum contaminant level for drinking water quality. 

High nitrate levels are expected to represent a continuing public 

health concern in these areas and elsewhere in the United States. 

Recognizing the need for a coordinated effort to reduce nutrient 

pollution, the EPA is renewing its commitment to work with States 

and other stakeholders to achieve progress. States do the majority 

of the hard, on the ground work to address nutrient pollution, and 

we work closely with our State and local partners to aid their efforts. 

I recently issued a directive to our regional offices making it 

clear that reducing nitrogen and phosphorous pollution is best addressed by catalyzing and supporting actions by States, relying on 

a range of regulatory and nonregulatory tools, including proven 

conservation practices. 

As I stated in that memo from March, States need room to innovate and respond to local water quality needs. So a one-size-fits-all 

solution to nitrogen and phosphorous pollution is neither desirable 

nor necessary. My directive builds on the principle that the EPA 

had previously articulated and reaffirms the EPA’s commitment to 

foster partnerships with States and collaboration with stakeholders. 

In conclusion, Mr. Chairman, the threat posed by nutrients in 

our Nation’s waters is perhaps the most serious water pollution 

problem faced by our communities nationwide. We are committed 

to working with States, with other Federal agencies, our Nation’s 

farmers, industries and other stakeholders to identify ways to tackle the nutrient problem in a way that protect our Nation’s waters, 

sustains our economy, and safeguards the health and well-being of 

all Americans who depend upon clean and safe water. 

72 

EPA is committed to working with States to find solutions to 

achieve our common goals. I ask to be able to put in the record a 

report from the State-EPA Nutrient Innovations Task Group called 

‘‘An Urgent Call to Action’’ from August of 2009. 

Mr. GIBBS. So ordered. 

[The information follows:] 

The report is available online at: http://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/upload/2009l08l27lcriterialnutrientlnitgreport.pdf. 

Ms. STONER. Thank you. 

Mr. GIBBS. Thank you. Mr. Opper. 

Mr. OPPER. I think my 5 minutes are up already. 

Good morning, Mr. Chairman, members and staff of the subcommittee, thank you for the chance to talk about what is fast becoming one of my favorite topics, numeric nutrient standards. 

Again my name is Richard Opper. I am here representing the 

States and territories responsible for implementing the environmental laws of the States and Nation, on behalf of ECOS, the Environmental Council of States. I am also lucky enough to be the Director of the Montana Department of Environmental Quality. And 

Mr. Chairman, I look forward to hosting you in my fair State one 

of these days. I hope you do come out sometime and visit. 

Nobody disputes the fact that nitrogen and phosphorous, which 

is euphemistically referred to as nutrients, are polluting this Nation’s waterways. Everybody really is on board with the fact that 

they are serious pollutants and we need to do a better job of controlling those nutrients. I think there is no dispute over that fact. 

Representative Bishop, you already referred to the Gulf hypoxia 

zone. I think it was that particular issue that triggered, largely 

triggered EPA in 1998 to direct the States to develop the numeric 

nutrient standards for nitrogen and phosphorous. Generally the 

States don’t even object to developing numeric nutrient standards, 

because they are easier to administer if you have to manage to a 

number rather than the narrative standards that are hard to interpret. I think regulated communities like the concept generally of 

having a number to manage to because there is not as much danger of regulator creep and they at least have the certainty they 

need in order to operate. So again to this point I don’t think there’s 

a lot of dispute. 

The dispute is how much leeway the States are going to have to 

develop and implement these standards once they are developed. 

So I am going to give you an example from my State of Montana, 

briefly some of the issues we are having with EPA and I am hopeful that we are going to be able to work things out and common 

sense will prevail, but we have had some issues so far. 

So Montana is one of 10 States roughly that actually have developed numeric nutrient standards. Nobody questions the science we 

used in developing these standards. I think we did a very good job 

at developing these. I think EPA is largely supportive of the numeric standards we developed. The environmental community is 

supportive, the industry is supportive of the science we used to develop these standards, but we haven’t adopted them yet. We 

haven’t adopted them because of one simple reason, which is that 

they can’t be achieved. They are too stringent. At this point, given 

73 

the limits of technology and the expense that would be required, 

they are not achievable. 

So the question becomes how are we going to implement these 

numeric standards once we adopt them? And we have been working with a group of municipalities, industries, the environmental 

community for a couple of years to develop an implementation 

plan, and what we came up with is a bill that was passed by our 

recent legislature which thankfully is no longer in session. This 

was one of the bills that I actually liked that came out of this session but it allowed for a variance, a general variance for people 

who applied for discharge permits from Montana. 

Now, this variance would require about 70 percent of our permitted dischargers to make improvements to the way they operate 

their water treatment facilities or to make actual improvements to 

their plants in order just to meet the variance. So the result is 

some immediate improvement to water quality, which is a good 

thing. 

Everybody that worked with us on this is on board. It was a near 

unanimous bill that was passed out of our legislature, which was 

unheard of this session. Everybody is on board. The only potential 

opposition to this approach we have to implementation is EPA, 

whose reaction to the variance is tepid. And I have to add it took 

a lot of work to move them from antagonistic to tepid, so we are 

headed in the right direction here. 

So I think EPA was having a difficult time seeing past the word 

‘‘variance’’ to the benefits that this bill would provide the State 

which are immediate improvements to water quality, continual 

tightening of the standards every 3 years when they come up for 

renewal, and a 20-year timeframe when the strict standards will 

be met by all of our dischargers. So it provides the kind of flexibility, innovation and consensus among the State that I think EPA 

would like to see. And I am very hopeful that common sense is 

going to prevail here. I think EPA will ultimately be on board with 

this. I have seen some hopeful signs lately. 

So that is it, Mr. Chairman. I will be available for questions, 

thank you. 

Mr. GIBBS. Thank you. Ms. Sullins. 

Ms. SULLINS. Good morning, Chairman Gibbs, Ranking Member 

Bishop and members of the committee. My name is Coleen Sullins. 

I am testifying today on behalf of the Association of State and 

Interstate Water Pollution Control Administrators, where I serve 

on the Board of Directors. I am responsible for North Carolina’s Division of Water Quality in the State Department of Environment 

and Natural Resources. I have more than 25 years’ experience in 

implementing the Clean Water Act programs in multiple States 

and in local government. 

Today I am testifying on behalf of ASIWPCA and not the State 

of North Carolina, although I will use some North Carolina examples to illustrate our points. 

Celebrating its 50th anniversary this year, ASIWPCA is the national voice of State, interstate and territorial officials responsible 

for implementation of programs that protect surface waters across 

the Nation. 

74 

ASIWPCA’s membership consists of State, interstate officials 

who administer the Clean Water Act programs on the ground. 

ASIWPCA’s members work closely with the Environmental Protection Agency as the coregulators responsible for implementing this 

critical regulation in a way that makes good sense and yields the 

most beneficial environmental results. 

The Clean Water Act has allowed us to successfully reduce many 

sources of pollution to our Nation’s waters. The mechanisms we 

have used in the past do not always work with the issues that we 

face today, including problems such as nutrient pollution. Today 

nutrient pollution is the leading cause of the water quality impairments across the Nation, as you heard Ms. Stoner say, and causes 

adverse impacts for drinking water, aesthetics, recreational uses, 

and aquatic life. 

While 21 percent of the impairments documented in EPA’s database is nutrient related, 18 percent of the TMDLs that have been 

developed were developed specifically to address nutrient impairment. The bottom line is the States are taking action to address 

a complicated and important issue. 

So why is nutrient pollution control so difficult? Because the traditional approaches have not worked and they will not work related 

to nutrients. Our traditional approaches have been to identify the 

pollutant at a level at which it is too toxic in the environment and 

then set water quality-based numeric and or narrative standards 

to keep that pollutant below the toxic level. 

Nutrients are different. There isn’t a consistent definitive level 

which we can say across an entire State or even across a water 

body or a watershed that this level is too much. 

Nitrogen and phosphorous are widely variable, naturally occurring and necessary components of healthy ecosystems, and ecosystems can be healthy under a wide variety of nutrient levels. 

Just as the amount of calories a person needs changes based on the 

individual’s height, weight and metabolism, percent of body fat, exercise, et cetera, an ecosystem’s need for nitrogen and phosphorous 

depends on many factors. So the extent to which the nutrients’ adverse effects occur within a water body depends on a wide range 

of other very site specific factors. 

States have found that nutrient levels that may cause impairment in one system under one set of conditions will not have the 

same negative impact on a different stream. Since nutrient impacts 

are dependent on the presence of other factors, many States are 

finding that a weight of evidence approach is needed to identify waters that may be undesirably affected by high levels of nutrients or 

to determine that nutrients are key to biological impairment. 

States are generally doing this on a watershed basis. For example, 

the high levels of nutrients are present in a water body where high 

cholorophyll A, a measure of algae, high light levels, low nighttime 

dissolved oxygen levels are observed, State biologists may conclude 

that the biological impairments noted are due to the influence of 

excessive anthropogenic nutrients. 

In contrast, some streams may exhibit high nutrient levels that 

have no deleterious affect on the stream’s biology. Simply stated, 

a single number for nitrogen or phosphorous is not an accurate indicator of adverse ecological or water quality effects. 

75 

We have another complicating factor that I need to touch on, and 

that is under the Clean Water Act, States only have direct authority over point source discharges, leaving most States in a position 

to only incentivize and encourage non-point source reductions. In 

many watersheds non-point sources may account for a large percentage of nutrient loads; therefore, expenditures aimed at achieving reductions at the end of the pipe may produce little overall gain 

where non-point sources contribute the bulk of nitrogen and phosphorous. 

In North Carolina we have performed indepth analysis of our estuarine systems and multiple significant reservoirs in the State 

that are impaired by nutrients. What we have found in almost all 

situations is that the non-point source contributes greater than 70 

percent of the nutrients of those impaired waters. 

States are using a wide variety of tools to achieve nutrient reductions, beyond nitrogen and phosphorousstandards and TMDLs. 

These tools include individual permit levels, wastewater treatment 

plant optimization, best management practices, nutrient trading, 

control of other water quality parameters, voluntary nutrient coalitions and other innovative approaches. 

States understand the appeal of the single water quality standard for nitrogen or phosphorous and implementation. However, this 

approach does not acknowledge the need for a more flexible system 

which allows the States to work effectively on nutrient issues and 

a wide array of applications used by permitting authorities. 

As Nancy indicated, she documented in a memo recently that innovation and flexibility is necessary. The States, however, are concerned that this memorandum still establishes the expectation of 

the numeric nitrogen and phosphorous standards. 

I would like to offer a few examples from North Carolina. North 

Carolina has proactively adopted and maintained a suite of both 

numeric and narrative nutrient criteria for many years. For more 

than two decades the State has implemented a statewide chlorophyll A water quality standard for all surface waters. 

Other examples include the phosphate detergent ban that went 

into place in the late 1980s and the required monitoring of nitrogen 

and phosphorous in the effluent from wastewater treatment plants. 

These actions resulted in a statewide reduction of phosphorous, 

plus an understanding of the level of contribution from point 

sources. 

In conclusion, States share the administration and Congress’ concern about nutrients and have adopted a variety of approaches, including narrative standards, response variables, weight of evidence 

approaches, and in some cases nitrogen and phosphorous standards. 

In my own State we have developed a variety of approaches because nutrient issues are dependent on many site specific issues. 

State economies are already under stress and are facing additional 

losses if we don’t continue to reduce nutrient impairments. We 

agree with EPA that it is imperative to prevent additional nutrient 

impairments from developing, as it is much more economical to 

prevent impairments than it is to restore a system once it is impaired. 

76 

We need room to innovate and respond to local water quality 

needs, and we believe that the States have shown the initiative to 

do so. We encourage EPA to work with the States to continue to 

develop and implement the most appropriate tools. 

Mr. Chairman, members of the committee, thank you for this opportunity to share ASIWPCA’s thoughts on the importance of the 

States’ role in nutrient pollution and control. 

Mr. GIBBS. Thank you. Ms. Card, welcome. The floor is yours. 

Ms. CARD. Good morning, Chairman Gibbs, Ranking Member 

Bishop and members of the subcommittee. My name is Bethany 

Card, and I am the Water Quality Division Director for the New 

England Interstate Water Pollution Control Commission. 

I have been working with our compact member States, which includes the six New England States and New York on their Clean 

Water Act programs for 12 years. During that time we have 

worked with our member States on water quality standards development and implementation specifically related to nutrients. 

The Northeast States are focused on nutrient management; it is 

a high priority. The States are keenly aware that nutrient pollution 

is a significant environment problem and every day they are working through various initiatives to address this issue. It is clear that 

the States and EPA are committed to resolving this problem together. There are many strong examples of that partnership. For 

well over a decade, States, EPA and stakeholders have been working on the development and implementation of multistate total 

maximum daily loads to address phosphorous in Lake Champlain 

and nitrogen in Long Island Sound. 

In the Commonwealth of Massachusetts there has been an ongoing comprehensive project that has been designed to protect the ecological health of 89 different coastal embayments, and these are 

just a few examples. 

At the same time the Northeast States have put significant resources into the process of developing numeric nutrient criteria, 

and because of the important connection between established criteria and ability to make water quality management decisions the 

States have no intention of abandoning these efforts. Yet when it 

comes to establishing the criteria themselves, there are two specific 

areas where the States take issue with the EPA’s preferred approach, which calls for independent applicability of numeric nutrient criteria and the need for nitrogen and phosphorous criteria for 

all waters, fresh and marine. 

The technical approach favored and intended to be used by many 

States bases criteria on strong scientific evidence using stressor-response relationships where nitrogen and phosphorous are the 

stressors and environmental indicators are the response. 

The relationship between nutrients and environmental response 

is influenced by any site specific factors, light, temperature and 

depth. And these factors must be taken into consideration in order 

to apply criteria efficiently. The stressor-response analysis is the 

most appropriate indicator of water body impairment status and 

paints the whole picture regarding the health of the watershed. 

In the Northeast our experience has been that there are distinctions between the State and EPA approaches on how to assess support for designated uses. In Maine and Vermont, for example, they 

77 

have been proposing criteria for freshwater that are based on a decision framework that takes into account both stressor variables 

and environmental response to each water body. Yet EPA has argued that single numbered criteria approaches should be used. 

However, no such uniformity exists in the natural world. Nutrients 

are not toxic contaminants with threshold responses. And when 

you consider the distinction, it becomes more clear why conditions 

demonstrated by acceptable environmental responses are the most 

appropriate way to determine if designated uses are being supported. 

Evaluating nitrogen and phosphorous may be helpful in screening potential impairments, but even still under the States’ preferred approach a water body would be considered impaired only if 

one or more of the measured environmental response criteria did 

not meet limits. In the case where all measured environmental response criteria are met, the water body would not be considered 

impaired even if nitrogen or phosphorous concentrations were 

above the States’ numeric criteria. 

Based on the criteria established by EPA for the State of Florida 

and feedback provided to our member States by EPA, we understand that the Agency is not supportive of the response-based approaches I have described unless they include numeric nutrient criteria for both nitrogen and phosphorous, where each criterion must 

be applied independently from any environmental response criteria 

in order to determine a water body’s impairment status. 

The Northeast States are concerned that by requiring both nitrogen and phosphorus criteria to be incorporated into State water 

quality standards and applied independently, technological controls 

could be required to remove both nutrients even though the production of growth in most water body systems is controlled by the most 

limiting nutrient, typically phosphorous in fresh water and nitrogen in marine. 

If the States are forced to deviate from their preferred approach, 

the consequences could be that water bodies would be inaccurately 

categorized as impaired. The result and outcome could mean requiring more advanced wastewater treatment processes that increased sludge production, require additional energy usage and 

most certainly inflate overall costs. 

In summary, the approach designed by the States which looks at 

environmental responses tells the story about the health of the 

water body, and therefore the States feel it is the most accurate 

and efficient way to figure out if designated uses are being supported. States have demonstrated that using environmental response variables to develop nutrient criteria is a scientifically valid 

approach that is highly protective of water quality. 

In the Northeast the States are very appreciative of the assistance provided by the EPA regional staff and intend to continue 

working with them on innovative approaches to protecting water 

quality from nutrient pollution like the TMDL process, the permitting programs and adopted watershed management. At the same 

time they intend to proceed with the scientific work that will build 

the foundation of their numeric nutrient criteria. 

Water quality protection is of the utmost importance to our State 

environmental agencies. Therefore, we encourage EPA to embrace 

78 

a more flexible path towards development and implementation of 

numeric nutrient criteria so that the States will be empowered to 

use the most appropriately targeted tools to implement these important criteria in earnest. 

Mr. Chairman, Ranking Member Bishop, and members of the 

committee, thank you for your time today. I am happy to answer 

if I questions you may have. 

Mr. GIBBS. Mr. Elmaraghy, welcome. 

Mr. ELMARAGHY. Good morning, Chairman Gibbs, Ranking Member Bishop, members of the committee. I am grateful for the opportunity to speak on the issue of nutrient standards. I am George 

Elmaraghy, Chief of Division of Surface Water at the Ohio EPA 

and longstanding member of ASIWPCA. Ohio is a water rich State. 

We have lake Erie in the north, we have Ohio River in the south, 

we have 87,000 miles of streams and rivers. Also, we have 58,000 

lakes and small ponds. 

Lake Erie was declared dead in the 1960s. The problem was 

greatly abated, thanks to the Clean Water Act and the Bi-National 

Water Quality Agreement of 1978. Lake Erie became known as the 

walleye capital of the world. Unfortunately, due to excessive nutrients, Lake Erie has greatly changed, nuisance algal bloom returned 

in the mid-90s and continued to worsen. Grand Lake St. Mary’s, 

the largest lake in Ohio, experienced very high levels of algal toxins last summer and this summer too. Ohio issued a no-contact advisory, essentially closing the lake. 

Regulating nutrients in streams is very challenging. Unlike other 

parameters, we cannot accurately predict a dose-response relationship. As a result nutrient water quality standards must be based 

on the weight of evidence approach that consider other factors besides the nutrient concentrations. 

For more than 12 years Ohio has been developing tools to predict 

the relationship between nutrient concentrations and biological 

health. Using the weight of evidence approach, we identify factors 

that we should consider to determine the stream response, such 

factors as chlorophyll A, biological health, nutrient concentration, 

dissolved oxygen and so on. These factors distilled into a multimetric scoring system known as Trophic Index Criteria, or TIC. 

This unique index accurately will predict a stream response to specific nutrient concentrations and stream habitat conditions. The 

TIC will be used to develop the 303(d) list, prepare the TMDL and 

to determine if nutrient limits should be included in a discharge 

permit. 

Ohio’s approach received positive feedback from USGS and other 

organizations. Ohio currently is working with U.S. EPA Region 5 

to finalize this concept. The staff in Region 5 is receptive to Ohio’s 

approach. Industries are faced with a wide variety of regulatory requirements. We shouldn’t require them to meet stringent nutrient 

limits unless we simultaneously address nutrient load from nonplant sources and we are sure that imposing these stringent limits 

will result in significant water quality improvement. 

The States need flexibility in developing numerical standards 

and, more critically, on how to implement these standards, to protect our streams without wasting valuable resources. Eliminating 

nutrient impairment in streams may take several decades. ThereVerDate Aug 31 2005 15:07 Feb 01, 2012 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\6-24-1~1\67049.TXT JEAN
79 

fore, regulations should call for a phased approach and utilization 

of adaptive management techniques. 

Mr. Chairman and members of the subcommittee, thank you for 

the opportunity to share Ohio’s thoughts on the importance of flexibility in developing and implementing nutrient standards. Thank 

you. 

Mr. GIBBS. Thank you. Mr. Budell. 

Mr. BUDELL. Chairman Gibbs, Ranking Member Bishop, committee members, good morning. My name is Richard Budell, I am 

the Director of the Office of Agricultural Water Policy with the 

Florida Department of Agriculture and Consumer Services. I am 

pleased to have the opportunity to share with you my department’s 

perspective on several key aspects of the U.S. EPA’s final numeric 

nutrient water quality criteria for Florida springs and inland waters that were finalized this past December. 

In EPA’s own words, and I quote, Florida has developed and implemented some of the most progressive nutrient management 

strategies in the Nation, end quote. The EPA has repeatedly acknowledged Florida for the substantial emphasis it has placed on 

monitoring and assessing the quality of its water. As a result of 

this commitment, Florida has collected significantly more water 

quality data than any other State in the Nation. 

More than 30 percent of the entire EPA national water quality 

database comes from Florida. Florida was the first State in the Nation to develop comprehensive urban storm water regulatory programs. Our wastewater treatment and reuse program is a model 

for the rest of the country. Our agricultural best management practices programs are firmly based on State law and science. They 

have been implemented on more than 8 million acres of agricultural lands and commercial forest lands across the State. 

By targeting its efforts and resources, Florida has made significant progress in nutrient reduction across the State. Examples 

range from Tampa Bay where sea grass populations have risen to 

levels not seen since the 1950s and now cover 30,000 acres of the 

bay, to Lake Apopka where over the last 8 years phosphorous concentrations have been reduced by 56 percent and water clarity increased by 54 percent. Despite these glowing reviews and Florida’s 

demonstrated commitment to water resource protection, EPA, we 

believe in direct response to litigation, determined in January of 

2009 that Florida had not done enough and mandated that we develop numeric nutrient criteria within 1 year. 

Before that year was up, however, EPA entered into a settlement 

agreement with the litigants and agreed to a time schedule to implement Federal rules that essentially usurped the State’s effort to 

move forward with its own. EPA subsequently developed and released their own draft numeric criteria for Florida in January of 

2010 and finalized those criteria last December. 

In our view, if this takeover wasn’t bad enough, we believe the 

methods used by EPA to develop its rules were inconsistent with 

its own guidance documents and the advice it received from its 

Science Advisory Board. 

Furthermore, we believe they compounded the situation by improperly applying the methods they did use, which in many cases 

would deem healthy waters in Florida as impaired. In response to 

80 

these issues, Florida’s Attorney General and the Commissioner of 

Agriculture filed a complaint in Federal court challenging the rule. 

Subsequently over 30 additional entities, both public and private, 

in Florida have filed similar complaints against EPA and their criteria, citing the same shortcomings. 

Florida believes strongly any nutrient reduction strategy should 

focus on measurable, environmental, and biological improvement 

while optimizing cost and efficiency. In the preamble to their rule 

EPA admits they are unable to find a cause and effect relationship 

between nutrient concentration and biological response for flowing 

waters like streams and rivers. 

In the absence of that cause and effect relationship there can be 

no certainty that the money and human resources devoted to reduce nutrient concentration in a stream or river will result in any 

measurable improvement in the biological condition of that stream 

or river. As stated previously, Florida believes that because there 

are so many natural factors like stream size and flow velocity and 

light penetration that impact how nutrients impact ecosystems, nutrient standards are best developed on a site specific basis. It is important to recognize, as also stated previously, that nitrogen and 

phosphorous are naturally occurring in the environment. They are 

necessary for the normal biological productivity of all water bodies. 

Determining when too much human induced nitrogen or phosphorous is present is very, very difficult. 

In other words, Florida believes it is important to link nutrient 

concentration with an assessment of the biological health of the 

water body before requiring the implementation of costly nutrient 

reduction strategies. Without this linkage, implementation of the 

EPA criteria would have Florida businesses, wastewater and storm 

water utilities, and agricultural producers spending time and 

money attempting to reduce nutrient concentrations, in some cases, 

to levels below natural background. 

In all estimations the implementation of these criteria is going 

to be expensive. It doesn’t matter whether Florida develops them 

or EPA develops them, it is going to cost a lot of money. And there 

is a lot of dispute about the costs associated with the implementation of these criteria. EPA’s estimates are much lower than the estimates that have been generated by my agency and other public 

and private entities in Florida. 

We are pleased that EPA has engaged the National Research 

Council in seating a panel to review these economic analyses and 

come up with an opinion of what we really think it will cost. 

In closing, Florida believes that Florida is best positioned to assess the health of its waters and establish associated water quality 

criteria for their protection and restoration. We believe that our 

track record for the implementation of progressive and successful 

water resource management programs is one of the best in the 

country. We have earned the right to exercise the authority envisioned by the Clean Water Act to develop our own water quality 

standards and implement them through an EPA-approved and predictable process governed by existing State law. 

Thank you. 

Mr. GIBBS. Thank you. Ms. Biggs. 

81 

Ms. BIGGS. Chairman Gibbs, Ranking Member Bishop, and members of the committee, I thank you for the opportunity to testify 

today on policies to reduce nutrients in our waterways. My name 

is Barbara Biggs, and I am the Governmental Affairs Officer for 

the Metro Wastewater Reclamation District in Denver, Colorado. In 

addition to my duties at the metro district, I also serve as the 

Chair of the Water Quality Committee for the National Association 

of Clean Water Agencies. It is my pleasure to testify on NACWA’s 

behalf today. 

Nitrogen and phosphorous are unlike any pollutants we have 

dealt with under the Clean Water Act. As such, they demand an 

approach that will result in verifiable and sustainable water quality improvement through an equitable cost effective implementation of nutrient controls by all sources of nutrient loading, including agriculture. 

The subcommittee’s focus on nutrient criteria is very timely and 

all stakeholders involved in this issue should agree that criteria development is a complex, strategic endeavor. Nutrient-related impacts are the water quality challenge of our time. NACWA members understand that clean water agencies need to be an equitable 

partner in the solution to this challenge. We are ready to do our 

fair share. 

However, the nutrient challenge won’t be fully addressed until 

agricultural sources, which are the dominant source in many watersheds, are asked to do their part in reducing nutrients as well. 

The existing Federal model for numeric criteria development and 

implementation is not working for all water bodies. The delay in 

implementing controls is largely due to the fact that we are trying 

to use a system that was designed for more traditional toxic pollutants. 

A number of States are exploring new approaches, but more 

needs to be done to ensure these approaches are embraced by EPA 

and that other States have the flexibility to undertake similar efforts. New and innovative approaches for expressing nutrient water 

quality criteria or goals instead of independently applicable total 

nitrogen and total phosphorous concentrations must be develop and 

encouraged. 

Colorado has taken steps to develop a unique approach to reducing nutrient concentrations and surface waters. A large group of 

stakeholders, including POTW, publicly owned treatment works, 

have been working for almost 2 years on an approach that includes 

scientifically derived nutrient numeric values for nitrogen and 

phosphorous, as well as an adaptive implementation plan that ensures nutrient reductions in priority watersheds, including those 

where point sources are a significant contribution. 

There is no singular national model for addressing nutrient-related water quality impacts, and what Colorado is doing may not 

work everywhere. The Colorado approach, however, does serve as 

an important model in terms of collaboration between stakeholders 

and regulators, which is the key to any successful approach. 

The elements of the Colorado approach include the adoption of 

enforceable water quality standards for high-quality waters and 

protected water supplies, a nutrient control regulation that would 

require implementation of biological nutrient removal for existing 

82 

and new POTWs with appropriate off ramps for small, disadvantaged communities and situations where the POTW contribution is 

de minimis, and a monitoring program to quantify sources of nutrients by watershed to ensure controls will be effective. 

Implementation of nutrient removal even in priority watershed is 

not a small investment, as shown by the color coded maps attached 

to our written testimony. While wastewater treatment plans accounts for a very small portion of the nutrient load statewide in 

Colorado, the metro district and the Greater Denver Metropolitan 

Area are nearly 50 percent of the phosphorous flow to the South 

Platte River. And we recognize that as a significant contributor of 

nutrients we must do our fair share. 

The district has identified a capital improvement program to 

meet the proposed numeric value for phosphorous and to treat to 

the limits of achievable technology for nitrogen that will involve 

the investment of $965.5 million over the next 20 years. EPA Region 8’s reaction to Colorado’s proposal has not been encouraging. 

They have raised concerns over the lack of enforceable standards 

for more waters and have threatened to object to permits that do 

not address nutrients. Though EPA continues to underscore that 

States should have a lead on nutrient control efforts, Colorado and 

other States continue to face significant hurdles. 

In conclusion, we have seen that the flexibility to explore new 

and innovative approaches to nutrient control as exemplified in 

Colorado can be a key element in any effort to address our national 

nutrient load challenge. Given the unique characteristics of each 

waterway, the multiple sources of nutrient loading as well as the 

varying effects nutrients have on aquatic life, it is clear that a suite 

of approaches is needed. 

Utility managers must be able to demonstrate that the investment they are being required to make will have an impact on 

water quality, are a cost effective way of addressing the problem, 

and will be sustainable over time. All of these considerations can 

only be achieved if at the end of the day point sources are not the 

only actors on the hook for controlling nutrients. Recently agricultural organizations signed on to a letter to EPA stating that they 

are partners and stakeholders committed to addressing nutrient 

loadings in our Nation’s waters. NACWA stands ready to join these 

organizations to undertake meaningful actions to address the nutrient issue because ultimately comprehensive reforms are needed 

to put in place an equitable framework for ensuring all sources of 

nutrients held accountable for their fair share of the problem. 

Thank you for the opportunity to be appear before you today. I 

look forward to any questions the subcommittee may I have. 

Mr. GIBBS. Thank you, Ms. Biggs. Just for the record, these are 

opening statements, and all the witnesses have written testimony 

that will be submitted for the record. And also, committee members, if you have opening statements, submit them for the record. 

Also, we are not going to have time today to get through all our 

questions, so we are going to have written questions for all the 

panelists to get back, because I know we are going to have votes 

soon, and I know Ms. Stoner has to leave at noon, correct? 

Ms. STONER. Yes. 

83 

Mr. GIBBS. So I am going to start out here on the first question. 

To me it is kind of an obvious question. We are all concerned about 

clean water and clean air, and enhancing and protecting the environment. And all our panelists here are what I would call are part 

of that team. And I hear, from the panelists from the States, major 

concerns about the relationship with the U.S. EPA and how we address this. Because obviously, phosphorous, nitrogen, nutrients are 

a problem and an issue, and it is a challenge we need to address, 

but the process seems to be the problem. 

And I know, Ms. Stoner, you referred to you strongly believe that 

States should lead the effort to reduce nutrient pollution, and the 

EPA is committed to finding collaborative solutions. 

In light of these statements and what we heard today, I am 

struggling with that. If the EPA is so collaborative and willing to 

work with the States to lead the effort, why are so many States 

that are here today—and we heard from other States—have so 

many issues with what they are hearing? It is kind of like we are 

all part of the team, and you call a team meeting, and you bring 

all the team members to the meeting, and you say we are going 

do this, we are going to fix the problem here, here is our challenges, but here is what you are going to do. 

Is that how you see it? What is going on here? Your mic is not 

on. 

Ms. STONER. Does it work? Excellent. I think you are certainly 

hearing that there are some issues that we are continuing to discuss, and people have different views on. I think there are some 

complexities associated with nutrient pollution that reasonable people of good faith, working together, can have different views on. 

We are guided by the law and the science. And we have boxes 

and boxes of scientific studies showing the relationship between 

nutrients and plant growth, which of course is why we put fertilizer on the ground, is to grow plants. 

We see the same relationship in water. And there is lots of different factors that affect how it operates in different kinds of water 

bodies. You are hearing that. People are trying to figure out different ways of dealing with those complexities. And we are in discussions, and I personally have been in discussions with many of 

the members of the panel and lots of other States, trying to figure 

out the best way forward. 

Mr. GIBBS. Let me just stop you there. You know, your own 

EPA’s Science and Advisory Board has recognized the shortcomings 

in using the numerical approach because of the differences going 

on in different localities; you know, flow, light, the biological conditions we heard. 

How do you address your own Advisory Board that has serious 

concerns about this one-size-fits-all approach that you are pushing 

off onto the States? 

Ms. STONER. The Science Advisory Board has actually indicated 

a lot of support for the approaches that we are using. We recently 

have taken their recommendations in a guidance document that we 

put out. We are consulting with them now on the Florida coastal 

standards. We are working very closely with them to make sure we 

are using the best science. That is what we are doing to address 

this. 

84 

And I would be happy to submit additional scientific studies for 

the hearing for the record to show you the scientific support on 

which U.S. EPA is relying. 

Mr. GIBBS. Mr. Budell from Florida, would you like to respond 

to that? 

Mr. BUDELL. There is no question there is a lot of science out 

there, and there are clear cases where cause-and-effect relationships can be established in lakes, for example, and springs. I think 

we largely agree with EPA that you can establish a cause-and-effect relationship. 

In flowing waters, I don’t think there is very much data that 

would reflect that you can clearly establish a cause-and-effect relationship between nutrient concentration and biological response. 

You can do it on a site-specific basis if you work very hard at it. 

I think the TMDL program, at least as it has been implemented 

in Florida, is an example that if you work hard enough at it, you 

can establish a relationship between concentration and biological 

response. It takes time. It takes money. It takes effort. But it results in a better end product, something that the participants, the 

stakeholders in the watershed, those that discharge, both point and 

nonpoint source, can embrace because it is a cause-and-effect relationship. There is some certainty that the money and effort that 

you implement—— 

Mr. GIBBS. Let me just interject because time is limited. Any others on the panel like to add something in this regard? Yes. 

Mr. ELMARAGHY. I hear from everybody here and feel like the difference is very clear. We believe like weight of evidence is the way 

to go. And U.S. EPA is still kind of thinking like independent applicability is the way to go. We need to resolve this issue before any 

other discussion. 

Mr. GIBBS. You are addressing cause and effect, you know, what 

is going on in those streams. 

Mr. ELMARAGHY. Yeah. There is no doubt the streams react differently to the same—— 

Mr. GIBBS. But for Washington EPA to come out and set a number and put that across the country, it creates serious problems. 

You can’t address it; right? 

Mr. ELMARAGHY. It will not work. And definitely we need to develop different number for different streams. And the more importantly. Like how to apply the standards. It is not like you need to 

apply it immediately; and the same way we apply it for zinc, you 

put number in the permit and within 5 years you meet this number. We have to develop the adaptive management approach to attaining nutrient standards. 

Mr. GIBBS. Thank you. My time is up. I yield to Mr. Bishop. 

Mr. BISHOP. Thank you very much, Mr. Chairman. 

Ms. Stoner, is there any effort on the part of the EPA to establish a set number and mandate it across the country? 

Ms. STONER. No, sir. 

Mr. BISHOP. Thank you very much. 

Mr. Budell, in your testimony you state that Florida has earned 

the right to develop its own water quality standards and implement them through an EPA-approved and predictable process. I am 

quoting you precisely, right? 

85 

Mr. BUDELL. That is correct. 

Mr. BISHOP. With respect, isn’t that essentially what is happening now? I mean aren’t the nutrient standards that the EPA 

promulgated in December of 2010 virtually identical to the standards that Florida suggested in the fall of 2008, and in some cases, 

actually 7 of 10 cases as it relates to streams, that the EPA standards are less stringent than the Florida standards? Isn’t that the 

case? 

Mr. BUDELL. The numbers that EPA promulgated were based 

largely on the work that Florida did. Florida had been working cooperatively with EPA on a strategy and a timeline to develop water 

quality numeric criteria for years. We don’t understand why EPA 

stepped in and adopted—— 

Mr. BISHOP. May I interrupt you there, sir? Isn’t it the case that 

EPA was brought in as the result of a lawsuit, and there was a 

consent decree entered into in settlement of that lawsuit by the 

State of Florida, by the EPA, and by the environmental groups that 

brought the lawsuit? Isn’t that the case? 

Mr. BUDELL. I don’t believe the State of Florida was a member 

to that consent decree. 

Mr. BISHOP. I have a press release that was issued by the State 

of Florida, January 16, 2009, quotes DEP Secretary Michael—is it 

Sole ́ or Sole? 

Mr. BUDELL. Michael Sole was then Secretary. 

Mr. BISHOP. I am quoting. The State of Florida recognizes that 

more needs to be done to address nutrient pollution in our rivers, 

streams, lakes, and estuaries. And these actions, that is, the actions of the EPA, will help our State and all of our stakeholders 

prevent and better manage sources of nitrogen and phosphorous 

from entering our waters. 

Mr. BUDELL. That is in January of 2009; that is correct. That 

was when EPA determined that Florida needed to develop numeric 

nutrient criteria within 1 year. 

Mr. BISHOP. Again, I am not trying to be difficult. I think it is 

important for the record. Wasn’t EPA’s involvement, though, 

brought about by the lawsuit? It wasn’t as if EPA was—— 

Mr. BUDELL. That was what my testimony was, yes, they were 

sued in August or July of 2008. 

Mr. BISHOP. And then when EPA in effect established the nutrient standards pursuant to the consent decree, isn’t it the case that 

those standards are A, not one-size-fits-all standards; but B, aren’t 

they less stringent in the majority of cases than the very standards 

that the State of Florida proposed? 

Mr. BUDELL. The numbers vary. Yes. Some of them are less. 

Mr. BISHOP. Seven of the ten as it relates to streams are less. 

Mr. BUDELL. OK. 

Mr. BISHOP. I guess what I am trying to get at is—— 

Mr. BUDELL. The issue isn’t the number. The issue that we differed with, and EPA, is the way we would implement those. Florida 

never had a chance to bring those standards to the Agency and propose them, that would have included the implementation strategies 

for the adoption of them. 

Mr. BISHOP. Didn’t the existence of the lawsuit preclude Florida 

from bringing those standards to EPA? 

86 

Mr. BUDELL. No. Not at all. In fact, the determination letter that 

EPA gave to Florida in 2009 gave Florida 1 year to develop the 

standards. 

Mr. BISHOP. Has not the EPA said to the State of Florida that 

if Florida wants to take the lead on this, be our guest, go ahead 

and do it? Is that not the case, Ms. Stoner? 

Ms. STONER. We have indicated to the State of Florida that we 

would welcome their moving forward with standards. They are actually working to do so in the State of Florida right now. And we 

have said if they complete those standards they can replace the 

Federal standards. Yes, sir, we have said that. 

Mr. BISHOP. And they would be responsible for the implementation of those standards. Is that not correct? 

Ms. STONER. That is correct. We also gave them a 15-month extension on the standards we have already done to work on implementation strategies together, and have offered to help them to do 

that, including site-specific criteria as appropriate. 

Mr. BISHOP. Thank you. I don’t want to cut you off, but I am running out of time. 

I want to go to Ms. Card, if I could. There is a very profound suggestion that with respect to enforcing the Clean Water Act that we 

return to pre-Clean Water Act days of where State-by-State enforcement, State-by-State standards and a go-it-alone approach. 

Now, I represent a district that has extensive coastline along 

Long Island Sound. Long Island Sound has in many ways been restored as a result of cooperative efforts between the State of New 

York and the State of Connecticut. If we were to adopt a go-it-alone 

approach, if, for example, Connecticut were to drop out—I don’t believe that they will, don’t get me wrong—but if they were to decide 

that they are going to drop out, that they are not really that concerned about the Sound, what impact do you think that that would 

have on the health and the vitality and really the economic benefits 

provided by the Sound? 

Ms. CARD. Mr. Bishop, I believe that the States, as you have 

heard today, are the primary implementers of the Clean Water Act. 

However, I think that the success that they have in implementing 

the Clean Water Act successfully and in accordance with the law 

is very much related to the partnership between the States and 

EPA, and that without that partnership the success is not possible. 

In my experience, this is even more true with multistate or interstate watersheds like Long Island Sound. And I think that any one 

of the partners pulling out of that process could certainly have an 

impact on the water quality protection, and certainly the economy 

that takes place in that watershed. And in Long Island Sound it 

would be shell fishing and—— 

Mr. BISHOP. A go-it-alone approach could be detrimental to water 

quality. Is that your conclusion? 

Ms. CARD. I agree with that statement, yes. 

Mr. BISHOP. I yield back, Mr. Chairman. Thank you. 

Mr. GIBBS. Thank you. Mr. Harris. 

Dr. HARRIS. Thank you very much, Mr. Chairman. And I will try 

to be brief. 

Ms. Stoner, thank you for appearing before the subcommittee 

again today. I have got a problem in Maryland. The problem is that 

87 

just last week it was announced that Maryland was 50 out of 50 

States in job creation, and private job creation. And then 2 weeks 

ago or 3 weeks ago Allen Family Foods, you know, a large poultry 

producer on the Delmarva Peninsula filed for Chapter 11 bankruptcy. And one of the driving forces behind that is the uncertainty 

with regards to the future for the agriculture and poultry industry 

on the Eastern Shore of Maryland because of the pending—looming, I should say—TMDL regulations that are working their way 

through the system. 

I am just going to ask a couple of questions. First of all, given 

the fact that the economic environment in the country is not improving, in fact it is worsening, especially in my district on the 

Eastern Shore of Maryland, with a rising unemployment rate, and 

which is reflective of the national situation as you know, is there 

a move within the EPA when they come up with these kind of regulations that I think everyone agrees they are going to economically adversely impact areas that are agriculturally dependent, or 

in our case dependent on an industry like the poultry industry, is 

there going to be a move in the EPA to take economic and job creation—or job destruction, I should say—factors into account when 

going forward with these regulations? 

Ms. STONER. Congressman, EPA does consider job creation, economic issues associated with implementation of water quality 

standards. States also look at those issues with respect to the uses 

that they set. There are, as you know, huge economic benefits associated with clean water and jobs associated with that, including 

those for agriculture, which is heavily dependent upon having clean 

water for irrigation and for feeding animals. 

Dr. HARRIS. Ms. Stoner, I only have a few minutes. I appreciate 

that sentiment that somehow the farmers on the Eastern Shore of 

Maryland are really thankful to the EPA for giving them—somehow making them able to have clean water for crops. But that is 

not what they are telling me. They are telling me they are afraid 

of what the EPA is going to do. They are afraid it is going to increase costs. 

Our poultry producers—again, this is the second major poultry 

producer in the United States to go bankrupt. Is the EPA going to 

change their modeling into what they should do with regards to the 

fact that now we have actual proof that there are businesses going 

out of business because of the uncertainty with regards to environmental regulations? And it is a simple question. 

Is the EPA going to change the way they look at regulations 

based on the worsening economic environment in the country, especially with regards to the effect on the agriculture and poultry raising industry from the regulatory environment? 

Ms. STONER. We already consider those—— 

Dr. HARRIS. Is the EPA going to change it? Is it going to enhance 

it? Ms. Stoner, you have a job, I have a job, but 2,400 people working for Allen Family Foods no longer have a job. And it is serious 

to them. It is dead serious. 

The unemployment rate in the country is up to 9.1 percent. The 

job creation in the last statistics only created 56,000 new jobs, 

when we should create 200,000 new jobs. We have to stop destroyVerDate Aug 31 2005 15:07 Feb 01, 2012 Jkt 000000 PO 00000 Frm 00105 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\6-24-1~1\67049.TXT JEAN
88 

ing jobs. And the Federal Government role in destroying jobs is a 

worrisome factor in my congressional district. 

So is your answer that the EPA is not going to change its attitude and increase its sensitivity to job destruction with regards to 

promulgating new regulations? 

Ms. STONER. The EPA believes, and I personally believe, that the 

policies we proceed with are to the economic benefit of the country 

as a whole. 

Dr. HARRIS. Well, Ms. Stoner, it is not to the economic benefit 

of my congressional district. I don’t represent the country as a 

whole. I represent the Eastern Shore of Maryland. And the EPA is 

destroying the economy on the Eastern Shore of Maryland. 

A final question to you. Has the EPA prepared any response at 

all to the controversy regarding the modeling in the Chesapeake 

Bay between the USDA and the EPA in coming up with their draft 

load estimates? 

Ms. STONER. My understanding is we are working closely with 

USDA on that. 

Dr. HARRIS. This is dated December 8, 2010. Now, it is now 

June. Jobs are being destroyed on the Eastern Shore because of the 

uncertainty with regards to regulations. It is now 6 months. Can 

you give me an idea how many more months it is going to take? 

Ms. STONER. I would have to get back to you on that. 

Dr. HARRIS. Please do. 

Thank you very much. Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. Ms. Edwards. 

Ms. EDWARDS. Thank you very much, Mr. Chairman. And thank 

you to the panel. And I just want you to know, Ms. Stoner, not everybody in Maryland shares my colleague’s viewpoints about the 

role of the EPA, the importance of the role that the EPA plays in 

making sure that all of us enjoy clean water. And even those of us 

who are in the more urban-suburban areas of Maryland, who know 

that the things that we do also contribute to the health of the 

Chesapeake Bay, really value the role that the EPA has played. 

And most importantly, and I wonder if you would share with 

me—a couple of things. I want to make sure that the panel understands that Maryland’s unemployment is 6.8 percent, which is well 

below the national average, and that in fact we are in the business 

of creating jobs in our State. And as well, I know that our Governor 

has signed into law a law that limits the use of lawn fertilizer to 

address nutrient pollution in the Chesapeake Bay. 

And I wonder if you could tell me your relationship with the 

Chesapeake Bay watershed States and the role that the EPA in 

fact plays with the States in helping them figure out what their responsibilities are in meeting the prescriptions of the Clean Water 

Act. 

Ms. STONER. Thank you. We are working closely with the States 

through their watershed—— 

Ms. EDWARDS. Is your microphone on? 

Ms. STONER. It is supposed to be on. Can you hear me? Through 

the watershed implementation plan process to have State-led plans 

to achieve nutrient reductions that will not only clean up the 

Chesapeake Bay, but actually waters throughout the watershed, 

89 

and provide all the economic, recreational, public health benefits 

that you refer to. That process is ongoing. 

And you know, I would just say that the water quality of the 

United States is only as well protected as the least protected State. 

So we feel like it is very important that Americans can go anywhere in the United States and know that they have safe water to 

drink, and fish that they can eat, and waters they can recreate in. 

That is very important to the EPA. 

And that is one of the components we bring to the process in our 

work with the States. We recognize that States have tremendous 

expertise as well. And as I said, they do most of the hard work. 

So it is very important that we support them and that Congress 

supports them in their efforts to do that. Resources are a huge 

issue for States, as you know. They are very important to make 

sure that we can all do these things together. And we appreciate 

the support that Congress has given to States and to EPA in moving forward with these programs. 

Ms. EDWARDS. And Ms. Stoner, just to finish up, I just want to 

be clear then in terms of your relationship with just, say, one of 

the States in the Chesapeake Bay watershed, in Maryland, and 

Governor Martin O’Malley, and the work that our State and our 

State legislature, with full accord, have actually given to the standards that have been placed in terms of looking at nutrients in the 

Chesapeake Bay, that you have been working in partnership with 

the State to ensure that those standards are ones that over time 

are going to reduce the high level of nutrients and nutrient pollution in the Chesapeake Bay watershed; isn’t that correct? 

Ms. STONER. That is correct. And there were several States that 

put out statements to that effect in December, when we finished 

the TMDL and began the additional work on the watershed implementation plans with those States. 

Ms. EDWARDS. And just as we conclude here, I just have a little 

bit of time, in H.R. 1, which was a bill that was championed by the 

majority in this House, including my colleague from the Chesapeake Bay, that there were cuts both to the SRF and the State 106 

programs. The SRF program actually lost two-thirds of its funding 

from the previous year, and the 106 programs lost about half of 

their funds. 

Would you say that significant increases in funding will be needed, and not the cuts proposed in H.R. 1, for both the SRF and the 

106 programs to ensure that collaborative efforts to reduce nutrient 

pollution and address other water pollution challenges would be 

successful? 

Ms. STONER. Those programs are very important to support the 

State work, the permitting programs, the State standards programs and so forth. The 106 program is the principal source of 

funding for those. The clean water and drinking water SRF, that 

is the way we pay for water and wastewater infrastructure in this 

country to ensure everyone has clean and safe waters, and, Congressman Harris, to create jobs for people in doing that for people 

across the country. 

Ms. EDWARDS. And do any of the other witnesses have a contribution to that? Thank you. 

90 

Mr. GIBBS. The committee is going to recess here for about 15, 

20 minutes, more or less. Votes have been called. It is a little less 

than 8 minutes yet on the vote call. So we will come back here in 

about 20 minutes. And we also have to dismiss Ms. Stoner. She has 

another commitment. Thank you for being here today. 

Ms. STONER. I appreciate that. 

Mr. GIBBS. And we will have some written questions we will submit. 

[Recess.] 

Mr. GIBBS. The committee will reconvene. Thank you for your indulgence. At this time, Mr. Bucshon, questions. 

Dr. BUCSHON. Thank you, Mr. Chairman. A couple comments 

first. It is unfortunate Ms. Stoner couldn’t stay. But I mean the result of this hearing today continues to confirm my opinion that 

there is a philosophical difference that we have here concerning the 

direction of Government, and my view that the current administration believes in central Government control of most things. And 

again, the testimony today just continues to confirm that. 

It seems in the face of a nationwide concern about EPA overreach, we continue to hear justification from the administration for 

their environmental policies, which appear to be somewhat extreme. Of course we have seen this before, I think, with the way 

the Affordable Care Act was passed. I would like to go on record 

saying that I am hearing from my constituents in my district in 

southwestern Indiana that these policies will definitely kill jobs, 

and especially in the area of the coal industry, which is critical to 

the State of Indiana and to my district. 

So with that said, I really ask this question of really the entire 

panel. Does what you heard today from Ms. Stoner from the EPA 

at all change your view that you have given in your testimony of 

the interaction between the Federal Government and your State? 

Start at the end and go down. 

Mr. OPPER. Thank you, Representative. I appreciate the question. 

The States implement almost all of the environmental programs 

that are handed down to EPA from Congress through the delegation process. EPA delegates the implementation of those programs 

to the States. They have a legitimate role in oversight. There is always going to be creative tension, and at times issues come up 

where the tension really flares. The numeric nutrient criteria is 

one where it flares particularly. So we are used to the tension between the State agencies and the Federal Government. 

As bad as things get, usually common sense prevails. I certainly 

hope that it does here, and expect that it will, but it is going to 

take a while. 

Dr. BUCSHON. OK. Thank you. 

Ms. SULLINS. Thank you, Representative. I don’t know that I can 

add a lot to what Mr. Opper has had to say. I believe that this 

issue is a significant issue in terms of the water quality and the 

need to protect water quality and address nutrient issues. And I 

believe that if we do not address nutrient issues that it will have 

an economic impact on our States. 

Dr. BUCSHON. I guess I would agree with that opinion. The question is who should be primarily doing that? Can the States adeVerDate Aug 31 2005 15:07 Feb 01, 2012 Jkt 000000 PO 00000 Frm 00108 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\6-24-1~1\67049.TXT JEAN
91 

quately do that? Should the Federal Government set a one-size-fitsall? I mean that is the discussion here today at our committee. 

Ms. SULLINS. And no, sir, I don’t think a one-size-fits-all is an 

answer to this particular issue. And I think that is where the 

struggle is. And we continue to work with EPA to try to specifically 

address our concerns. And I believe the March memo that was 

issued specifically did come closer to addressing our concerns. However, there was a final statement in it that implied we all needed 

to adopt end stream nitrogen and phosphorous standards. And 

that, I believe, is where the tension lies, is that we do not believe 

that is necessarily appropriate in all cases. And it is necessary for 

the States to be able to address their watershed-specific issues. 

Dr. BUCSHON. Thank you. I only have a limited amount of time, 

so if you could limit your answer to maybe 10, 20 seconds. 

Ms. CARD. Sure. I would just agree that I believe the States and 

EPA do have a common understanding of the problem, yet the 

States have yet to hear EPA state that they are open to a more 

flexible approach that incorporates environmental response criteria 

as opposed to nitrogen and phosphorous criteria. And we need that 

flexibility. 

Mr. ELMARAGHY. Thank you, Representative. U.S. EPA has a 

role to play in adopting the standards, but they are not very flexible in allowing the State to consider our local conditions and allowing us to give the flexibility in order to achieve the same goal. Our 

goal is to eliminate impairment. Every State can deal with in different way. 

Dr. BUCSHON. Thank you. 

Mr. BUDELL. Congressman, nothing Ms. Stoner said here today 

in any way changed my perception of the relationship, the strained 

relationship, that exists right now between EPA and Florida relative to numeric nutrient criteria. 

Ms. BIGGS. Congressman, my concern—thank you for your question—my concern is that EPA continues to be more focused on a 

number than on meaningful reductions and meaningful improvements in water quality. 

I think what you are seeing in Montana, what you are seeing in 

Colorado, are attempts to make meaningful improvement while we 

keep talking about the number. This problem has to be dealt with 

on a watershed-wide basis. You can’t just go after, for example, the 

clean water utilities, because we are the easiest, and there is a section in the Clean Water Act that gives you the authority to go after 

that one sector of the source. 

Dr. BUCSHON. OK. Thank you all. Yield back. 

Mr. GIBBS. Thank you. Mr. Bishop? 

Mr. BISHOP. Thank you, Mr. Chairman. I just have one question, 

but I am going to ask it of each of the panelists. I want to read 

a quote. And Ms. Sullins, I am going to start with you. It is OK. 

I want to read a quote from an August 2009 report entitled, ‘‘An 

Urgent Call to Action’’ that was prepared with the participation of 

EPA and ASIWPCA. Is that how you say it? You need fewer letters 

in this, OK? 

Ms. SULLINS. ASIWPCA. 

Mr. BISHOP. OK. Thank you. The report states, and I am quoting, 

Establishing a cross-State enforceable framework of responsibility 

92 

and accountability for all point and nonpoint pollution sources is 

central to ensuring balanced and equitable upstream and downstream environmental protection. It is also essential to strengthen 

the ability of any single State to demand environmental accountability, without jeopardizing the loss of economic activity that 

might shift to another State with less rigorous standards, close 

quote. Is that a statement that your organization still agrees with? 

Ms. SULLINS. Yes. 

Mr. BISHOP. OK. May I ask each of the panelists? May I start 

with you, sir? 

Mr. OPPER. Yes. We do agree with that. And we do see some 

need for unanimity among standards. But there still has to be flexibility worked into the equation. So I don’t disagree. 

Mr. BISHOP. OK. Ms. Card? 

Ms. CARD. Yes, we agree with that statement. 

Mr. BISHOP. Mr. Elmaraghy? 

Mr. ELMARAGHY. You pronounced it perfectly. 

Mr. BISHOP. Thank you. 

Mr. ELMARAGHY. I agree with the statement. 

Mr. BISHOP. Thank you. Mr. Budell? 

Mr. BUDELL. I agree with it as well, but implementation flexibility is the key. 

Mr. BISHOP. OK. 

Ms. BIGGS. Congressman Bishop, I also agree with the statement. I have to agree with Mr. Budell that implementation is the 

key. And I have to reiterate that it has got to be a watershed-wide 

solution. 

Mr. BISHOP. But that would certainly suggest, if it is a watershed-wide solution, that would certainly suggest, if not mandate, 

cooperation among the States. Correct? 

Ms. BIGGS. Yes. 

Mr. BISHOP. OK. Thank you. I yield back, Mr. Chairman. 

Mr. GIBBS. Thank you. 

Mr. Budell, I think in the last round of questioning you didn’t 

have a chance to maybe finish what you wanted to say. I want to 

give you the opportunity to maybe finish your thought, what your 

thought process was there. 

Mr. BUDELL. Well, sure. It was that the series of questions that 

Congressman Bishop asked about the litigation and the impact of 

the litigation on Florida’s involvement in numeric criteria. What I 

was going to say is that, yes, there was a lawsuit against EPA that 

resulted in EPA determining that Florida needed to develop numeric criteria. And we were on a schedule, working cooperatively 

to develop those criteria with EPA, on their timeline, when they 

independently, without consultation with the State, entered into a 

settlement agreement with the litigants. And that settlement 

agreement specifically replaced our effort with their own. 

In the settlement agreement, they agreed that they would take 

over the process of developing the numeric criteria, even though 

they had been working with us cooperatively during the period of 

the 9 months since they made the determination. And that settlement agreement we were not a partner to, we were not privy to, 

we were not consulted in any way, shape, or form. It was a complete surprise to us, the State, and particularly the Department of 

93 

Environmental Protection, that that settlement agreement was entered into in August. 

Mr. GIBBS. So much for working together collaboratively. 

Mr. BUDELL. Not so collaborative. 

Mr. BISHOP. Would the gentleman yield? 

Mr. GIBBS. Yes, go ahead. 

Mr. BISHOP. Is it not fair, though, to at least assume that if the 

EPA had not entered into a settlement, that a settlement or a finding would have been imposed by the judge or by the courts? 

Mr. BUDELL. There was no court date scheduled. The department—the State is on a schedule. 

Mr. BISHOP. Are you suggesting that the case could have gone 

forward with no resolution? 

Mr. BUDELL. No. I am suggesting that we were agreeing and 

working cooperatively with EPA on a schedule to develop nitrogen 

and phosphorous numeric criteria to be submitted to EPA for approval by January of 2010. The determination letter was January 

of 2009. They gave us 1 year to develop those criteria. Before that 

year was up, they entered into a settlement agreement with the 

litigants and usurped our ability to complete that process. That settlement agreement was not a requirement of the court. 

Mr. GIBBS. So they entered—the U.S. EPA entered into a settlement agreement with the litigants and didn’t consult with Florida? 

Mr. BUDELL. There was no consultation with Florida at all. 

Mr. GIBBS. OK. To me that kind of possibly raises a red flag 

about the motive of the lawsuit and who was directing it. But we 

will let that go at that. 

Mr. Opper, can you talk a little bit about the variances? And apparently in your testimony you talked about that the technology 

doesn’t really exist to get there. So can you just elaborate a little 

bit more on variances and my understanding that the opposition 

from the U.S. EPA regarding the variances? 

Mr. OPPER. Thank you, Mr. Chairman. I wouldn’t say the opposition at this point is adamant. I understand EPA’s heartburn with 

variances if a variance is a ‘‘get out of jail’’ free card, because EPA 

wants to see some immediate progress made. I can understand 

EPA’s hesitation over a variance if the variance isn’t strengthened 

over time—the variance is diminished over time, so you get stronger standards over time as the technology develops. However, Montana’s variance does both of those things, sets a 20-year timeframe, 

it results—when the standards have to be met it results in immediate improvement to water quality, significant progress. And it is 

ratcheted down, so it is tighter and tighter, the standards are, over 

time. 

I think it should be a model for the rest of the country, because 

as you know, Montana tends to be a trendsetter when it comes to 

things like fashion and standards. So I think EPA again will get 

to that point where they will accept our variance. But they have 

heartburn because they are worried it will set precedence with 

other States whose variances aren’t thought through maybe as 

well. 

Mr. GIBBS. But your point is if a State is making progress and 

has a program in place that is ratcheting down and getting to 

where reducing the nutrient loads and improving the environment 

94 

in the streams and all that, they should be allowed to proceed that 

way. 

Mr. OPPER. Mr. Chairman, we are demonstrating the immediate 

improvements to water quality, the flexibility, the innovation, and 

the collaborative work that EPA called for in Nancy Stoner’s March 

11 memo. They should be standing up and applauding Montana’s 

work. 

Mr. GIBBS. Great. Mr. Elmaraghy, in Ms. Stoner’s testimony she 

mentioned the great Lake Saint Mary’s in Ohio. Can you elaborate 

a little bit what the State of Ohio is doing to work to correct the 

problem at Lake Saint Mary’s? 

Mr. ELMARAGHY. Thank you, Mr. Chairman. The State of Ohio 

enacted some rules last year, last December, that require farmers 

and the watershed to adopt some kind of best management plans 

and submit these plans to the Ohio Board of Natural Resources for 

their approval. Also by 2012, a farmer will not be allowed to apply 

manure on frozen land or during the winter. In addition to that is 

the State of Ohio directed, so far, around maybe $8 million to help 

in resolving this issue. This month we started to treat the lake 

with alum, at a cost of about $3.5 million. We add alum in order 

to precipitate the phosphorous, the dissolved phosphorous, and 

make it not available for algae. 

It will be a long struggle. I am not expecting this problem will 

be resolved overnight. But we need to get the local people to start 

to take the lead in dealing with this issue. 

Mr. GIBBS. Great. It is great to hear that States are addressing 

it. 

Now, one concern that came up in the full Transportation hearing earlier this week was that States aren’t set up to address nutrient issues. I know we had quite a little debate. And one of the arguments I heard was because States didn’t do it before, prior to 

1972 with the Clean Water Act. By all your testimonies today and 

what we are seeing, in my opinion the States are geared up and 

willing and are addressing the issue. And this is a really tough 

issue because phosphorous and nitrogen loads, basically a lot of it 

is, as I think we heard today—nonpoint source pollution is a challenge. 

And I just have serious reservations when the U.S. EPA is going 

to come out and take away the flexibility, especially when you have 

had programs that have already been approved by them, and try 

to do your work. So I am going to praise what you are trying to 

do. And it is my commitment to try get as much flexibility to institute your programs. 

I think what has happened in Florida, for example, is a serious 

concern that needs to be addressed. Because phosphorous is an important nutrient for American agriculture. And most of it comes 

from Florida. So there could be serious ramifications if we shut 

down the phosphorous mining industry in Florida for American agriculture and our food supply. 

So I commend you for the work you are doing to protect the environment and work to also create and enhance that industry sector 

and the jobs. 

I would like to get clarification. I will just open it up I guess to 

everybody. Is the EPA proposing a single number standard by 

95 

ecoregion? And I had notes, and I am glad my staffer reminded me 

of that. It is under my impression, and I remember Ms. Stoner testified they weren’t. But I think they have their database and setting up by ecological regions. Is that true? Anybody want to go 

first? 

Mr. BUDELL. Mr. Chairman, the EPA criteria, as they have been 

adopted for Florida, do establish numbers for nitrogen and phosphorous by ecological region. They have broken the State up. So it 

is not a one-size-fits-all, but it is a one-size-fits-all for each 

ecoregion. And our position is that even within those ecoregions 

there is significant variability between the water bodies that exist 

in those regions. 

Mr. GIBBS. How vast is an ecoregion? 

Mr. BUDELL. It is dependent on geology, soils, geography to some 

extent, weather. There are criteria that go into establishing different ecoregions. I just named a few. But it doesn’t necessarily 

mean that all streams within an ecoregion are identical and have 

the same exact nutrient regime. And that is why—I can understand numbers, single numbers being used as a guidance, as a 

guide for an ecoregion. 

But before you would actually require landowners within a particular stream reach or watershed to implement costly nutrient reduction strategies, you need to confirm that those reduction strategies are actually going to result in environmental benefit. 

I think one of the earlier speakers said that nutrient content in 

one stream may result in some kind of impairment. The same nutrient content in an adjacent stream would support a perfectly 

healthy biological community. And that is what we encounter in 

the real world out there. That is what Mother Nature gives us. 

Mr. GIBBS. I think Mr. Bishop wants—— 

Mr. BISHOP. Just to be clear, was it not Florida that proposed an 

ecoregion approach, Panhandle East, Panhandle West, Bone Valley 

West? 

Mr. BUDELL. And we are not opposed to an ecoregion approach. 

Mr. BISHOP. But in Florida there is an ecoregion approach that 

Florida at least initially endorsed. Is that correct? 

Mr. BUDELL. That is correct. If I could—— 

Mr. BISHOP. Of course. 

Mr. BUDELL. Yes. I just point out that, yes, we were going to use 

those numbers as a guide. And we were always going to pair the 

evaluation of the nutrient content in a water body with a biological 

assessment of the health of that water body. That was what we 

were going to submit to EPA for approval. Not just you have to 

meet the number that is in the ecoregion regardless of the health 

of the water body that is in that. 

Mr. BISHOP. And can you still not do that? 

Mr. BUDELL. That is what we are struggling with. We gave EPA 

the opportunity, we believe, to back out gracefully and let us pursue and submit that to them for approval. That was the petition 

that we sent to the Agency in—— 

Mr. BISHOP. Which they have not either approved or denied. 

Mr. BUDELL. Well, that is—— 

Mr. BISHOP. Is that not the case? 

96 

Mr. BUDELL. We are dissatisfied with the response that we got 

from the Agency. Let me just say that. 

Mr. BISHOP. OK. I yield back, sir. 

Mr. GIBBS. And I do believe that they are trying to set a number 

from a numerical standard what the phosphorous and nitrogen 

load can be, and not factoring in the biological conditions that 

might exist in specific locales. 

Mr. BUDELL. That is correct. 

Mr. GIBBS. And I think that is really the big issue here. 

Mr. BUDELL. That is the major issue in Florida. 

Mr. GIBBS. And obviously to me, I think the local States, or localities and States, would have the best hands-on knowledge to address that than to have set parameter tight numbers. 

Mr. BUDELL. I think Mr. Elmaraghy recognizes the value of these 

trophic State indices, various tests that can be made. We have a 

stream condition index that is a very, very robust test of the biological health of water bodies. That was what we had proposed to 

use as a confirmatory tool when using these nitrogen numbers as 

guidelines. And the response was less than warm I will just say. 

Mr. GIBBS. Now, just a quick follow-up on my thought. Are there 

some areas where the number that has been proposed or set by the 

U.S. EPA for, say, phosphorous that is—even if there was no 

human activity in that system that the number would still be higher, especially in phosphorous, than the number they are setting? 

Mr. BUDELL. That is correct. I mean the process that they used 

by using the 90th percentile or the 75th percentile of a referencestream approach invariably results in unimpacted waters not being 

able to meet their numeric criteria. So you have got standards that 

even Mother Nature can’t meet in a certain subset of the water 

bodies. That is correct. 

Mr. GIBBS. Mr. Elmaraghy. 

Mr. ELMARAGHY. You got it right. Thank you, Mr. Chairman. 

Ohio spent about 5 years period, studied in detail about 50 

streams. And the reason we find like every stream is kind of 

unique. You cannot really say because of the concentration of phosphorous at this level you would have impairment. And as a result, 

we developed this trophic index criteria, which include all the variables in one index. And we are testing it on other streams to be 

sure, like this index, can be predictive of impairment in the stream. 

And so far we are getting some indications this index is workable, 

and we are getting endorsement from USGS and the other scientific organizations. My feeling is this approach should consider 

one parameter. 

Considering all the factors is a good approach to proceed on, because like there is no one number will be acceptable for all the 

streams. The important thing really, instead of concentrating on 

the number for phosphorous and nitrogen, is how to implement this 

number. It seems like that is a key for approaching the nutrients. 

The Ohio approach, like when we develop our standards, will include in our standards implementation strategies. So everybody 

knows this number is not exactly a final number, it is a target. We 

need to use adaptive management technique. We may try something first and see how the stream will respond. And if it didn’t respond appropriately, we have to do something different until we 

97 

meet attainment in the stream. Our way of assessment attainment 

of the stream is using the biology of the stream. Ohio is kind of 

very unique. We have biological standards for the streams. So we 

can tell, like if we go and do biological survey of the stream on attainment or no, and we can also tell if the impairment is coming 

from nutrient or from other parameters. 

Mr. GIBBS. That is a good point. I think it is possible to have a 

stream not in impairment, but maybe the phosphorous level might 

be higher than the numeric set standard and it still be a stream 

that is functioning biologically right; correct? I don’t know how to 

say it. 

Mr. ELMARAGHY. Absolutely. Nutrients is different. 

Mr. GIBBS. Pardon? 

Mr. ELMARAGHY. Nutrients is completely different than other parameters like zinc or copper. 

Mr. GIBBS. Anybody else want to comment on this? Ms. Card. 

Ms. CARD. If I might, I just wanted to emphasize something that 

I said in my testimony that is critical to the issue that we are having with EPA is that regardless of whether nitrogen or phosphorous are established in guidance or are incorporated as part of 

the water quality standards themselves, the sticking point for us 

is that they should not be applied independently of what the environmental response is telling us. And that the environmental response, whether it be the biological response, the clarity of the 

water body, dissolved oxygen, that is what makes the determination of whether designated uses are being supported, and not the 

nitrogen or phosphorous criteria as the case may be. Those numbers should not be applied in and of themselves, absent the consideration of the environment. 

Mr. GIBBS. That gets back to my point I just made. It may be 

possible to have a stream not in impairment that could have a high 

numerical phosphorous because of other things going on in that 

stream, and it is not a problem, and you have aquatic life and everything is functioning well. 

Ms. CARD. Yes, sir. 

Mr. GIBBS. Anybody else want to respond? 

I sincerely want to thank you for making the trip into DC and 

suffering through all the humidity in this town. Have a safe trip 

back to your respective States, and keep up the good work. 

Thank you very much. At this time the committee is adjourned. 

[Whereupon, at 12:56 p.m., the subcommittee was adjourned.] 

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