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[Senate Hearing 106-699]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-699

 
                             WATER QUALITY

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON AGRICULTURE,
                        NUTRITION, AND FORESTRY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                                   ON

                             WATER QUALITY

                               __________

                           FEBRUARY 23, 2000

                               __________

                       Printed for the use of the
           Committee on Agriculture, Nutrition, and Forestry

                     U.S. GOVERNMENT PRINTING OFFICE
67-026CC                     WASHINGTON : 2000
_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402

           COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY

                  RICHARD G. LUGAR, Indiana, Chairman

JESSE HELMS, North Carolina          TOM HARKIN, Iowa
THAD COCHRAN, Mississippi            PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky            KENT CONRAD, North Dakota
PAUL COVERDELL, Georgia              THOMAS A. DASCHLE, South Dakota
PAT ROBERTS, Kansas                  MAX BAUCUS, Montana
PETER G. FITZGERALD, Illinois        J. ROBERT KERREY, Nebraska
CHARLES E. GRASSLEY, Iowa            TIM JOHNSON, South Dakota
LARRY E. CRAIG, Idaho                BLANCHE L. LINCOLN, Arkansas
RICK SANTORUM, Pennsylvania

                       Keith Luse, Staff Director

                    David L. Johnson, Chief Counsel
                      Robert E. Sturm, Chief Clerk
            Mark Halverson, Staff Director for the Minority

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing:

Wednesday, February 23, 2000, Water Quality......................     1

Appendix:
Wednesday, February 23, 2000.....................................    53

                              ----------                              

                      Wednesday, February 23, 2000
                    STATEMENTS PRESENTED BY SENATORS

Lugar, Hon. Richard G., a U.S. Senator from Indiana, Chairman, 
  Committee on Agriculture, Nutrition, and Forestry..............     1
Fitzgerald, Hon. Peter G., a U.S. Senator from Illinois..........    23
Harkin, Hon. Tom, a U.S. Senator from Iowa, Ranking Member, 
  Committee on Agriculture, Nutrition, and Forestry..............     5
Lincoln, Hon. Blanche L., a U.S. Senator from Arkansas...........     6
Thomas, Hon. Craig, a U.S. Senator from Wyoming..................     3
                              ----------                              

                               WITNESSES

Adler, Robert, Professor, University of Utah, College of Law, 
  Salt Lake City, UT.............................................    37
Barrett, John, Cotton and Grain Producer, Edroy, TX..............    40
Browner, Carol, Administrator, Environmental Protection Agency, 
  Washington, DC.................................................     9
Glickman, Dan, Secretary of Agriculture, United States Department 
  of Agriculture, Washington, DC.................................    12
Johnson, Paul, Director, Iowa Department of Natural Resources, 
  Des Moines, IA.................................................    32
Kraft, James A., Vice President, General Counsel and Secretary, 
  Plum Creek Timber Company, Inc., Seattle, WA...................    28
Savage, Roberta, Executive Director, Association of State and 
  Interstate, Water Pollution Control Administrators, Washington, 
  DC.............................................................    34
                              ----------                              

                                APPENDIX

Prepared Statements:
    Lugar, Hon. Richard G........................................    54
    Baucus, Hon. Max.............................................    80
    Adler, Robert................................................   116
    Barrett, John................................................   143
    Browner, Carol...............................................    56
    Glickman, Dan................................................    74
    Johnson, Paul................................................    95
    Kraft, James A...............................................    81
    Savage, Roberta..............................................   100
Document(s) submitted for the record:
    Statement of the American Farm Bureau Federation.............   150
    Statement of the American Society of Civil Engineers.........   213
    Letter to Hon. Max Baucus, submitted by Ms. Carol Browner, 
      EPA Administrator..........................................   245
    Letter to Hon. Richard Lugar, submitted by James A. Kraft, 
      Vice President, General Counsel and Secretary, Plum Creek, 
      Timber Compant.............................................   247
    Comments of the Society of American Forester's, submitted by 
      Michael T. Goeryan, Jr., Director, Forest Policy...........   253
    Comments of the National Pork Producers Council, submitted by 
      John McNutt................................................   273
    Testimony for the record, submitted by National Association 
      of State Foresters.........................................   287
    Statement of the National Association of State Departments of 
      Agriculture................................................   297
    Letters from LSU Ag Center, the Glenn-Colusa Irrigation 
      District, and the Northern California Water Association, 
      submitted by Cleveland H. Marsh, Vice President, Domestic 
      Policy, USA Rice Federation................................   302
    Questions and Answers submitted for the record...............   334

                             WATER QUALITY

                              ----------                              

                      WEDNESDAY, FEBRUARY 23, 2000

                              United States Senate,
         Committee on Agriculture, Nutrition, and Forestry,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:02 a.m., in 
room SR-332, Russell Senate Office Building, Hon. Richard 
Lugar, (Chairman of the Committee), presiding.
    Present or submitting a statement: Senators Lugar, 
Coverdell, Fitzgerald, Harkin, Baucus, and Lincoln.

OPENING STATEMENT OF HON. RICHARD G. LUGAR, A U.S. SENATOR FROM 
  INDIANA, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND 
                            FORESTRY

    The Chairman. This hearing of the Senate Agriculture 
Committee is called to order.
    Before we commence our hearing on the issues before us this 
morning, the chair would like to announce, before we get into 
those issues, some of the pending business of the Committee in 
coming days. Members of staff will hopefully inform senators 
who are not here and those of the press who are following these 
issues may want these heads-ups.
    The Crop Insurance Risk Management mark-up will occur on 
March 2, which is a week from tomorrow, and that day of mark-up 
may very well include consideration of Senator Allard's bill on 
interstate shipment of birds in the cockfighting situation. We 
may also consider approval of a Texas watershed project. 
Because of the size of the Federal contributions, it requires 
at least some scrutiny and thought by our committee.
    The issue of interstate shipment of state-inspected meat 
will not be considered during the mark-up of March 2, but we 
will have a hearing scheduled on that matter. A number of 
senators wish to be heard, as do other parties. So, as opposed 
to a more immediate action by the Committee, we will have a 
hearing in the near time frame.
    In January, after a hearing which we had on consolidation, 
I wrote a letter to the Justice Department which conveyed many 
of the themes of that hearing, asking for their clarification. 
Specifically, we asked about the Hart-Scott-Rodino premerger 
applications filed over the last 5-years, a five-year trend 
line of useful resources, both financial and personnel, which 
the Antitrust Division has allocated to these agribusiness 
cases, allocation and use of the premerger fee and a number of 
issues of this variety. We are advised that the Justice 
Department will respond now within the next 10-days. So for 
those following the consolidation merger issue, that will be a 
timely response and we will proceed from there.
    Finally, I would mention that there is interest in the 
Committee on the soybean sign up, which of course came about in 
the farm legislation of last year. We are advised that the sign 
up will continue until March 31. Once the sign up period is 
complete, USDA will determine the exact payment amounts for 
each producer who has signed up. Currently it is estimated that 
a producer with about 100 acres of soybeans would receive a 
check approximately of $333 if all 850,000 soybean producers 
sign up. So this is still pending, an aspect of unfinished 
business from the last farm bill.
    I will give a short opening statement. Senator Thomas has 
asked to be heard and if he appears, he will then give a 
statement just after mine. Then we will have a distinguished 
administration panel for extended testimony following that, and 
then finally a panel of states and local industry witnesses.
    The Committee meets today to discuss the issue of water 
quality as it pertains to agriculture and forestry. Our 
particular focus this morning is the Environment Protection 
Agency's proposed changes with regard to the Total Maximum 
Daily Load Program and the subsequent changes in the National 
Pollutant Discharge Elimination Systems Program. Many in the 
agriculture and forestry community have concerns about how 
these proposed regulations will affect their businesses, as 
well as their involvement in ongoing watershed restoration.
    Under the Clean Water Act, states have utilized voluntary 
programs and approaches to protect water quality. We want to 
hear today about the effectiveness of this approach. The states 
are concerned that the proposed EPA regulations represent a 
major significant shift away from historic voluntary and 
collaborative efforts toward watershed-based approaches. These 
collaborative watershed strategies are the basis for voluntary 
incentive-based solutions to control nonpoint source pollution.
    State water quality agencies, the Defense Department's 
Clean Water Act Services Steering Committee, the Department of 
Agriculture and the United States Chamber of Commerce, 
representing more than 3-million U.S. businesses, along with 
many forestry and agricultural groups, question EPA's proposed 
revisions. They claim the proposals would exceed EPA's 
authority, undermine states' rights, and impose exceptional 
costs and impede economic development.
    We also want to address today EPA's legal authority to 
regulate nonpoint source pollution. The Congressional Research 
Service, in a legal memo prepared for the Agriculture 
Committee, has stated it does not appear that EPA has legal 
authority to regulate nonpoint sources under the Clean Water 
Act. EPA appeared to concede this point at a House hearing last 
week, but we shall hear more about that this morning.
    Meanwhile, the water quality challenges remain, and 
agriculture and forestry's downstream neighbors will, with 
justification, expect progress. The question then is how can we 
best work together to improve our nation's water quality? Is it 
best done by command and control or by further commitment to 
incentive-based watershed approaches, which may not have had 
either the time or the investment to work thus far?
    This Committee has offered leadership on incentives for 
water quality efforts. The 1996 farm bill was one of the most 
environmentally responsive and responsible farm bills in our 
nation's history. It included the Environmental Quality 
Incentives Program [EQIP]. Senator Leahy and I were co-authors 
of that in a bipartisan push.
    Now, this is a highly successful program that is targeted 
to states with environmentally sensitive areas. EQIP provides 
producers with flexibility needed to address nonpoint source 
problems, which vary within a state, from state to state and 
from watershed to watershed. These problems can also vary from 
season to season and from year to year. nonpoint source 
pollution is very site-specific and EPA should incorporate 
maximum flexibility into any revision of the proposed 
regulations.
    It is my hope that this hearing, in addition to being a 
forum for the airing of concerns about these particular 
proposed rules, will also be the start of a dialogue on how we 
can make progress in an incentive-based system to address water 
quality challenges associated with agriculture and forestry. 
This may involve more funding for our nonpoint source programs, 
such as EQIP, the Wetland Reserve Program, and the Conservation 
Reserve Program. We should also examine how to increase the use 
of other market-based approaches. It is through a combination 
of well-funded and innovative strategies that we will best 
address agriculture's water quality challenges.
    [The prepared statement of Senator Lugar can be found in 
the appendix on page 54.]
    I note the presence of the distinguished senator from 
Wyoming, Senator Thomas. Would you please approach the podium 
and we look forward to your testimony, as always, Craig. You 
are a good friend of the Committee.

  STATEMENT OF HON. CRAIG THOMAS, A U.S. SENATOR FROM WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here. I appreciate the Committee holding this 
hearing and allowing me the opportunity to participate.
    I applaud the Committee for examining how the Environmental 
Protection Agency [EPA] actions will impact agriculture 
producers and foresters. EPA's water quality proposal of total 
maximum daily loads [TMDLs], is an issue of great concern to me 
and to people in Wyoming and, I am sure, also of this 
Committee.
    The most pressing threat considered by our farmers and 
ranchers in Wyoming is not the commodity price or market 
concentration as much as it is being regulated out of business.
    As a member of the Environment and Public Works Committee, 
which has jurisdiction over the Clean Water Act, we have 
followed the administration's executive order initiating the 
Clean Water Action Plan. Many of us strongly are concerned and 
opposed to the use of executive orders to launch efforts as 
broad and far-reaching as the Clean Water Action Plan, 
essentially one-hundred-eleven ``key actions'' affecting 
Federal agencies, state and local governments. Several of these 
key actions are incorporated into the TMDL proposal, including 
key action number forty-three, restoration through enforcement, 
key action seventy-one, anti-degradation guidance for pollution 
run-off, and key action number seventy-six, link total maximum 
daily loads to air disposition.
    Since the Clean Water Act leaves nonpoint sources largely 
unregulated, it is our responsibility to ensure that the action 
plan does not become a mechanism for agencies to overstep their 
statutory authority. However, based on how EPA has revamped the 
TMDL program, their actions explicitly seek to bypass the 
Congress.
    Congress has spoken on how nonpoint source pollution should 
be addressed in the 1972 passage of the Clean Water Act and 
again in 1987 with respective amendments. Congress specifically 
limited EPA's authority to covering pollution stemming from 
point sources. Moreover, Congress created the TMDL program to 
reduce water impairment problems caused by point sources, and 
an alternative approach was taken for nonpoint source 
pollution, one focussed on voluntary and incentive-based 
measures.
    Over the past 2-years, I have challenged the statutory 
authority of EPA to regulate run-off pollution for nonpoint 
sources. The EPA has responded by stating that Congress did not 
expressly prohibit the Agency from regulating nonpoint source 
pollution. Mr. Chairman, we have nonpoint source programs in 
place that have achieved significant environmental benefits and 
should be duly credited.
    I firmly believe that Congress should stop this aggressive 
and unwarranted approach. If EPA wants to make program changes, 
the Agency should work with the Congress. I assure you the EPW 
Committee would not have endorsed this type of top-down 
prescriptive plan.
    None of us disagree with the importance of improving our 
nation's water resources, of course. Nor would we disagree that 
some nonpoint pollution sources are impairing water bodies. 
However, we do not have sound water quality data that would 
provide an accurate portrayal of water bodies impaired by 
nonpoint source pollution. Unfortunately, what EPA and many 
states are using--nonquantitative assessments--are subjective 
evaluations. Without using sound, creditable science to assess 
the health of our waters, we can be sure this initiative and 
the taxpayers dollars will be questioned. Will they, in fact, 
reduce pollution?
    Instead of forcing such an immense program on our states, I 
propose EPA would first accurately identify the problem. After 
collecting scientific data, if nonpoint sources are found to be 
a significant obstacle to clean water, I would urge the 
Congress and the administration to make funding for voluntary 
and incentive-based programs a priority, as was done with point 
sources, to assist landowners with pollution reduction efforts.
    I believe the letter Under Secretary James Lyons sent to 
Administrator Browner could not have been more accurate in 
articulating how the EPA rules would adversely affect 
agricultural producers and foresters. Attempting to regulate 
agricultural and silvicultural activities in the same manner as 
point sources demonstrates a lack of understanding or a 
complete disregard for the industry's production practices.
    I am disappointed to see USDA abandoning its position on 
the proposed rule. USDA, through its Natural Resource 
Conservation Service, has done a commendable job, as a matter 
of fact, in reducing run-off and improving water quality with 
their limited resources. It is frustrating to watch the 
department fail to defend its own programs but instead, 
apparently sort of cave in to political pressure. Certainly if 
funding for nonpoint source programs was given as high a 
priority as point source programs, it is safe to say there 
would be a vast improvement in the quality of water.
    More importantly, through NRCS's functions in a facilitory 
role with producers by providing on-the-ground technical 
assistance, these people have formed true partnerships with 
producers to resolve water impairment problems. But the EPA 
believes improved water quality is best achieved through 
regulation.
    It is my strong belief these types of problems are more 
effectively addressed at local and state levels, rather than 
through the Federal mandates. Certainly we all have a 
responsibility to improve the water quality. The question is 
the approach and how do we approach the problem without placing 
an unfunded mandate on our states and landowners?
    So, Mr. Chairman, that is the point of view that I hold and 
have expressed in other committees and thank you very much for 
the opportunity of sharing those views here with you.
    The Chairman. Well, we thank you for coming to the 
Committee to make that presentation.
    I will call upon Senator Harkin, first of all if he has 
questions of Senator Thomas and, if not, we will excuse Senator 
Thomas and Senator Harkin then will proceed with his opening 
statement.
    Senator Thomas. Thank you, Sir. I appreciate it.
    Senator Harkin. Thank you. I have no questions. I just want 
to thank my colleague for coming and testifying and for his 
long-time interest in water quality. I appreciate it very much, 
Craig.
    The Chairman. Thank you.
    Senator Harkin?

  STATEMENT OF THE HON. TOM HARKIN, A U.S. SENATOR FROM IOWA, 
   RANKING MEMBER, COMMITTEE ON AGRICULTURE, NUTRITION, AND 
                            FORESTRY

    Senator Harkin. Thank you very much, Mr. Chairman. I 
apologize for being slightly late. I again ask that my full 
statement be made a part of the record.
    The Chairman. It will be published in full.
    Senator Harkin. I just want to thank you for holding these 
hearings. It is a very critical issue. We are facing some very 
critical problems in water quality in Iowa. It has been 
estimated that about 20,000 or about 40-percent of our waters 
are impaired. I am sorry; about 150-waters in Iowa are listed 
as impaired; about 20,000 nationwide or about 40-percent of the 
total.
    We established the Clean Water Act 25-years ago. Great 
strides have been made but it is obvious from even the most 
casual observer that we have a long way to go.
    I am again pleased to see that our director of EPA, Carol 
Browner, is here, our distinguished Secretary of Agriculture, 
and I also want to point out that I think one of the foremost 
experts in this whole area is with us today, Mr. Paul Johnson, 
who is director of the Iowa Department of Natural Resources. He 
is former chief of the USDA's Natural Resource Conservation 
Service. He is a former state representative and a long-time, 
well-known conservationist throughout the Nation, again also a 
long-time personal friend.
    I just wanted to make those opening statements, Mr. 
Chairman. This is an issue that again I think a lot of people 
thought we just passed the Clean Water Act and we could move 
on. But there are all new sources of pollutants and nutrients 
entering our water that we had not anticipated 25-years ago.
    I believe we have to come up with comprehensive new 
approaches to some of these point source and nonpoint source 
pollutions. I believe we have to put more incentives in for 
farmers to practice better conservation practices. That is why 
I have introduced the Conservation Security Program that would 
provide direct payments to farmers on a voluntary basis to 
encourage them to practice better conservation methodologies.
    I think the voluntary approach is one that has worked in 
the past with the Water Quality Improvement EQIP program. Both 
of them have shown their worth. And, I think this is going to 
be one very major element.
    The second is to provide, I think, some national standards 
for run-off from some of our large feedlots. We still have a 
patchwork quilt from state to state and area to area as to what 
we are allowing in terms of run-off from these large 
confinement operations.
    I have been watching the growth of these large animal 
feeding operations and they use the word ``confinement.'' I 
think that is a pretty loose term. They do not really confine 
the run-off that much and we are seeing a lot of it polluting 
our waterways, our underground water, some of our underground 
wells, and I think we are going to need some national standards 
on that, which we still do not have.
    So those are just my thoughts on that. Again, Mr. Chairman, 
I appreciate your having the hearing and again ask that my 
statement be made a part of the record.
    The Chairman. Thank you very much, Senator Harkin.
    Senator Lincoln, do you have an opening comment?

  STATEMENT OF THE HON. BLANCHE LINCOLN, A U.S. SENATOR FROM 
                            ARKANSAS

    Senator Lincoln. I do, Mr. Chairman. Thank you so much and 
thank you for allowing us to have this hearing today.
    I will really cut right to the point. In this issue, as it 
has evolved in my state, it just does not seem to make a whole 
lot of common sense to add an unnecessary regulation on our 
nation's private landowners, who are already conducting 
responsible harvesting of their own private timber. And this is 
in regard obviously to the timber industry. I know you have 
been talking about some of the agricultural aspects of it, as 
well. It is not economically sound and it is not good for the 
environment we are seeking to protect.
    There are already many, many state and Federal regulations, 
as well as best management practice guidelines in place, to 
limit and control nonpoint sources of pollution. I fully 
support the Best management practice(s) [BMP] guidelines 
already instituted in many industries across the Nation and 
especially in our private forestry industry and think we should 
be promoting them as much as possible.
    In fact, I believe I am correct in saying that the 
Environmental Protection Agency supports these programs, as 
well. They have approved forestry BMP programs in Arkansas and 
in many other states as an acceptable solution to the problems 
of nonpoint source pollution. They have been working 
effectively in our state and in many other states.
    In Arkansas over 85-percent of our private forest 
landowners voluntarily follow these BMPs to strictly limit and 
in many instances eliminate the discharge of pollutants from 
forestry activities. I just would like to reiterate that point. 
Eighty-five percent of Arkansas's private landowners are 
voluntarily spending time and money to ensure that when they 
harvest their timber, they do not unnecessarily disturb or harm 
the environment. That is a pretty good track record--85-percent 
participation on a voluntary basis.
    It simply makes sense to do so. I mean after all, they have 
to live on that land and drink the water, too. So they are 
interested in making sure that they are preserving and 
operating under good conservation measures.
    I have introduced a bill that takes these facts into 
account. My bill, S. 2041, promotes the continued voluntary 
implementation of BMPs by eliminating any potential new Federal 
regulatory burden from being placed on private forest 
landowners.
    Many silviculture activities that benefit the environment, 
such as conducting responsible harvesting and thinning, 
voluntarily following best management practices, and promoting 
reforestation, will actually be discouraged by the proposed 
regulations.
    I wish we did not have to resort to legislation to 
statutorily enforce what the Congress originally intended in 
the Clean Water Act, that the EPA has jurisdiction over point 
sources of pollutants but not nonpoint sources. But, Mr. 
Chairman, it seems that we have no other choice or that this is 
one action we have to take in order to find a resolution 
elsewhere. Simply put, my bill statutorily exempts forestry 
nonpoint sources of pollutants from the EPA's point source 
regulations.
    Having said all that, I want to reiterate that I want to 
find a sensible solution to the problems of maintaining clean 
water. I have introduced my bill to statutorily ensure that 
forestry sources of nonpoint pollution remain so and there 
should be an easier way to go about this.
    Certainly we can come up with a better solution than to 
have to step in and statutorily limit the EPA's authority. I 
think it has been shown through the good work of the forestry 
industry what they have done with the BMPs, that we can reach 
the goal of maintaining clean water through education and 
implementation of voluntary programs for nonpoint sources and 
not through mandatory permitting for nonpoint sources of 
pollution. Why would we want to implement what has been 
described at best as a confusing, unpredictable extension of 
the TMDL regulations?
    The Arkansas Department of Environmental Quality, which I 
might add has full EPA delegation for all of its water 
permitting programs in Arkansas, has stated publicly that they 
do not have the capability or the manpower to implement these 
new TMDL regulations. Furthermore, they have also negotiated 
with the EPA and the forestry industry to create an agreement 
on implementing nonpoint source pollutant controls.
    I would just like to restate that the state of Arkansas has 
an EPA-approved method of limiting nonpoint sources of water 
pollution. I would think that, that would be enough for us. I 
would hope that it could be. In trying to encourage, as oppose 
to mandating what we want to see happen in terms of 
conservation, it is certainly going to, in the long term, come 
up with better results.
    To exacerbate things, there is a lawsuit currently pending 
in Arkansas by the Sierra Club that would expand Arkansas's 
303(d) listed waters to around one-hundred-ninety waters. That 
would almost quadruple Arkansas's current fifty-one-stream 
segments on the 303(d) list covering eighteen different rivers 
and streams. So it would seem to me that this lawsuit, along 
with this regulation, would essentially require a point source 
water permit for normal timber operations over almost our 
entire state of Arkansas. This just seems to be a bit 
excessive. It does to me and I hope that others with EPA and 
the Department of Agriculture and the Chairman and my 
colleagues might see some of that excessiveness so that we 
could come about with a solution.
    Mr. Chairman, I am sorry to have taken so much time and I 
will finish by saying that I agree that we need to do all that 
we can to ensure that our nation's waters remain clean and 
usable for many generations to come. I am a mother, as well, 
and I want to see that happen for my children, too. But I do 
not believe that attempting to regulate nonpoint sources of 
pollutants as a point source is the way to do that. Simply 
requiring point source permits for nonpoint sources of 
pollutants will do nothing but overburden the state and Federal 
regulatory agencies, as well as the farmers and foresters 
required to follow the new regulations.
    In the end, Mr. Chairman, these new rules get us nowhere 
closer to a cleaner environment than we would get from a 
voluntary program. They become unnecessary and certainly 
unreasonable in the entire scheme of what we are trying to 
accomplish.
    So thank you, Mr. Chairman, for holding the hearing and I 
appreciate and look forward to visiting with my colleagues who 
will be witnesses and testifying. Thank you.
    The Chairman. Thank you very much, Senator Lincoln.
    The chair would like to call now our distinguished 
witnesses from the administration, first of all, Ms. Carol 
Browner, Administrator of the Environmental Protection Agency. 
She will be accompanied by the EPA Assistant Administrator for 
Water Chuck Fox.
    Let me ask Ms. Browner, I am not certain of the 
arrangements made with staff. Do you wish to testify by 
yourself or would it be permissible to have the Secretary of 
Agriculture--in that case I will call the Secretary of 
Agriculture simultaneously. Deputy Secretary Richard Rominger, 
as often is the case, is accompanying him, and the Under 
Secretary for Natural Resources and Environment James Lyons.
    Let me just take this moment to say that the last time we 
were all assembled, as I recall, was at the USDA. It was a 
summer program involving the President of the United States and 
on that occasion he was generous in commending an article which 
James Woolsey, former Director of the CIA and I had written for 
Foreign Affairs Magazine of a year ago January in which we, in 
essence, said that OPEC might strike again and that we really 
ought to try to take some thoughtfulness about biomass 
research. Our committee has taken favorable action on that 
bill. We are hopeful the Senate as a whole may do so soon 
because this does offer an avenue, not for a solution of the 
current problem or the future ones that may be before us, but a 
significant way in which the agricultural and environmental 
communities, both parties, the President and the Congress could 
participate in a constructive solution.
    So I appreciated your asking me to be with you on that 
occasion and we are grateful that you are with us today.
    At this point I would like for you both to testify. Because 
your testimony is very important, we will not put a limit on 
it. You have had this process before and know that it is 
helpful to some extent to summarize your comments because I 
know there will be questions and maybe even some dialogue 
between the two of you.
    First of all, Administrator Browner.

   STATEMENT OF CAROL BROWNER, ADMINISTRATOR, ENVIRONMENTAL 
 PROTECTION AGENCY, WASHINGTON, DC., ACCOMPANIED BY CHUCK FOX, 
  ASSISTANT ADMINISTRATOR FOR WATER, ENVIRONMENTAL PROTECTION 
                             AGENCY

    Ms. Browner. Thank you, Mr. Chairman and members of the 
Committee. We are very pleased to be here today. I am 
particularly pleased to be joined by Secretary Glickman and his 
colleagues, with whom we work very closely on any number of 
important issues, issues important to the agricultural 
community, the forestry community, and environmental and public 
health protections for the people of this country.
    We appreciate the opportunity to talk to you about what we 
believe is one of the most important steps that we can take to 
ensure the goals of the Clean Water Act, actually goals that 
were anticipated by the Congress in a bipartisan manner almost 
30-years ago now. Those goals, quite simply put, were to ensure 
that the people of this country would have clean water, they 
would have water that is drinkable, fishable and swimmable.
    We have made a lot of progress and it is progress we should 
all be very, very pleased with. When the Clean Water Act was 
first passed in 1972 and working with this committee and other 
members of the Congress over the last 7-years, we have made 
tremendous progress. Behind us are the days of rivers catching 
on fire, of lakes dying slowly. Today, without a doubt, our 
waters are cleaner, thanks to a team effort--Federal, state, 
local governments working with industries, individual stewards 
of the land, farmers, ranchers and forest managers.
    But it does not mean that all of our problems have been 
solved. An overwhelming majority of Americans--218-million--
still live within 10-miles of a polluted water body. Over 
20,000 water bodies do not meet water quality standards, 
standards that have frequently been set by the state 
government. We certainly still have work to do and, Mr. 
Chairman, I appreciate your comments and other members of this 
committee recognizing that there is still work that remains to 
be done.
    As we all know, the proposed revisions to the water 
pollution control program that EPA has put forward were 
designed to help us solve the remaining water quality 
challenges and problems that we face. The program is called the 
TMDL program and I think everyone knows but I think it is worth 
reminding all of us what TMDL stands for--total maximum daily 
load.
    As a practical matter, what a TMDL is, is a pollutant 
budget for a specific river, lake or stream. It looks at the 
individual river. Not all rivers are treated the same but 
individual rivers, individual lakes, individual streams, and it 
determines how much more pollution needs to be removed from 
that river, lake or stream to ensure that water quality 
standards are met. It is a very, very sensible way to do the 
final work necessary to ensure clean water for all people in 
this country. A TMDL is essentially a quantitative measure of 
what it takes to achieve water quality goals.
    The TMDL program is led by states and communities because 
they are in the best position to make the decisions as to how 
to reduce the remaining pollution, how best to achieve the 
water quality standards and the water quality goals.
    The proposal which EPA put out was many, many years in 
development. While the public comment period has closed 
recently, we have not yet made any final decisions. And Mr. 
Chairman, again let me thank you for calling this hearing at 
this point. This is extremely valuable to us as we review all 
of the comments we have received, as we continue in the 
dialogue with USDA and others. And we do hope to finalize this 
proposal sometime this summer.
    Let me give you my personal assurances that we are going to 
do everything we can to incorporate many of the ideas that we 
have heard from these hearings so that we can produce a program 
that will best serve the interests of all of the American 
people.
    Now the concept of TMDLs or the concept of a quantitative 
approach is not untested. Recent history tells us that the 
quantitative approach will, in fact, achieve significant 
results. I just want to give you one example. I have others, 
but let me give you one example--the Great Lakes.
    In the late 1970s our fresh water treasure known as the 
Great Lakes were in tremendous danger. That was widely 
accepted, both in the Great Lake states but across the country. 
And so our Nation, our friends in Canada, the Great Lake 
states, we all came together and we developed quantitative 
pollution targets. How much pollution did we need to get out of 
the Great Lakes to restore the Great Lakes?--very, very similar 
to what a state would do in a TMDL program.
    What has happened? The Great Lakes are absolutely on the 
rebound. We have a plan. We are working in partnership with 
states, with communities, with industry, with farmers, and the 
Great Lakes are on the rebound. Similar efforts are reviewing 
the Chesapeake Bay, the Long Island Sound.
    Successes like these led EPA to convene an advisory 
committee several years ago to take a hard look at the TMDL 
program and to develop recommendations for improving it, to 
look at what we had learned and to see if we could not 
incorporate those tools, that knowledge, into a program that 
other states could then take advantage of.
    The advisory group was a diverse group and I will tell you 
something--they did not agree on everything. There was lots of 
discussion, lots of different points of view. But it is their 
recommendations that formed the basis for the program proposed 
by EPA last summer.
    Mr. Chairman, I look forward to discussing with you and the 
members of the Committee these changes in more detail, but let 
me just say one thing in closing. This proposal was intended to 
honor and reflect what makes this program so effective to begin 
with. And, as Senator Lincoln pointed out, it is the work of 
the states that has made this program so successful thus far. 
Nothing in our proposal should be construed to change that and 
if it has created that impression, then we will fix it because 
we know that this work, at the end of the day, will best be 
done state by state.
    When we finalize this program this summer, I think it will 
be very clear to make sure that everyone understands what the 
program will not include. Very quickly, our proposal, nor will 
the final program require a Clean Water Act permit for nonpoint 
sources of pollution. Let me say that again. No Clean Water Act 
permit for nonpoint sources of pollution. This means that there 
will not be a Clean Water Act permit for the vast majority of 
silviculture operations--not all, but the vast majority. It 
will not create a program run out of Washington. It will allow 
the states to set the goals, to write the plan, to implement 
the plan.
    Finally, let me mention that the administration does have a 
budget pending before Congress that seeks additional funds for 
the states, as Senator Thomas spoke to the need for funding. We 
are specifically asking in the EPA budget for an increase of 
$45 million for TMDL development by the states. This would be a 
base of $110 million, so a significant increase in funding for 
the states.
    In addition, we are seeking an increase in nonpoint source 
pollution grants of $50 million on a base of $200 million, 
again money for the states. Mr. Chairman, you have our 
commitment that we will work with all parties as we seek to 
finalize this program.
    The 1972 Clean Water Act set an ambitious national goal of 
fishable and swimmable. We can achieve it by working together. 
Thank you.
    [The prepared statement of Ms. Browner can be found in the 
appendix on page 56.]
    The Chairman. Thank you very much, Administrator Browner.
    Secretary Glickman.

   STATEMENT OF HON. DAN GLICKMAN, SECRETARY, UNITED STATES 
  DEPARTMENT OF AGRICULTURE, WASHINGTON, DC., ACCOMPANIED BY 
  RICHARD ROMINGER, DEPUTY SECRETARY OF AGRICULTURE; AND JIM 
LYONS, UNDER SECRETARY OF AGRICULTURE FOR NATURAL RESOURCES AND 
                          ENVIRONMENT

    Secretary Glickman. Thank you, Mr. Chairman, Senator 
Harkin, Senator Lincoln. I want to thank you for inviting USDA 
to appear, along with my colleague Carol Browner. With me, 
today are, if Deputy Secretary Rominger and Under Secretary Jim 
Lyons.
    We share EPA's commitment to cleaning the waters of the 
U.S. and building on successes reducing water pollution over 
the past several decades. But to some degree, those 
accomplishments were the easy part. The remaining pollution 
concerns, as highlighted in the President's Clean Water Action 
Plan which Administrator Browner and I helped to prepare, are 
so-called nonpoint sources of pollution such as soil erosion, 
urban run-off, pollutants from animal feeding operations and 
other sources that do not come from a single, simply-identified 
source. Addressing these nonpoint sources of pollution is the 
great challenge that remains to further improve our waters to 
make them fishable, swimmable, and potable.
    To accomplish these next steps in cleaning our waters will 
take a concerted effort from farmers, ranchers, and forest 
landowners, as well as urban and suburban residents. 
Notwithstanding all the work that remains, farmers, ranchers, 
and foresters have been working for years to reduce the effects 
of their operations on water quality. Much has been done in 
this regard using many of the conservation tools that Congress 
and the department wrote into the previous three farm bills.
    I do not have to restate them all but we have the 
Conservation Reserve Program, the Wetlands Reserve Program, and 
the Conservation Reserve Enhancement Program. They have helped 
improve the waters of Chesapeake Bay, salmon habitat in Oregon 
and Washington, and drinking water supplies for New York City. 
The President's budget has requested $1.3 billion above 
currently authorized levels to bolster our agriculture 
conservation programs.
    I am proud of agriculture's and forestry's contributions to 
the Nation's efforts to clean our waters, while recognizing 
that we can and should do more. The question is how should we 
proceed with our efforts to reduce nonpoint source pollution 
and what additional tools are needed to realize further gains?
    I believe we must proceed carefully and thoughtfully. As 
you know, American farmers and ranchers have for the last 3-
years suffered from rock-bottom prices, shrinking global 
demand, record worldwide production, and a slew of natural 
disasters. Simply put, as you know, Mr. Chairman and so does 
Senator Harkin and Senator Lincoln, farmers are under 
extraordinary financial distress right now and more than ever, 
they need clear and understandable information about how any 
new proposed regulation might affect their operation.
    The proposed rules are for some folks confusing, and in the 
agriculture community we have heard that--they are confusing. 
The language of the draft rule is complex and frankly, it would 
present a challenge to any expert on the issue. By its very 
nature, these rules are complicated because they deal with 
technical aspects of pollution control.
    But first and foremost, farmers need a clear statement of 
how the proposed rule would affect them. Farmers demand clarity 
and I think they can deal with a lot of things but what they do 
not need is more uncertainty out there. And I think this is 
something that Carol and I are working on very, very closely 
and she understands that better than almost anybody else that I 
know.
    I do want to clarify the situation regarding the 
department's position on these proposed rules. On October 22, 
1999, Under Secretary Lyons sent a letter to Administrator 
Browner commenting on EPA's proposed rules. Senator Thomas 
referred to that. The letter had not, however, gone through 
departmental clearance. And, more importantly, I never reviewed 
it.
    Accordingly, it does not represent USDA's official 
position. Now I will be talking about the content of the 
letter, which I generally agree with, but the fact is that 
substantively, that letter did not go through our formal 
clearence process. And I would have sent a different tone if I 
had seen that letter.
    The fact is that we are working together--USDA and EPA--on 
this issue very closely. Some are using the letter to drive a 
wedge between USDA and EPA on the issue and the letter unfairly 
questioned the EPA's interpretation of its own legal 
authorities. Let me make clear: I have enough problem with 
USDA's legal authorities, let alone to comment on EPA's legal 
authorities, particularly as they relate to that agency, which 
has been charged by Congress to implement the Clean Water Act. 
So that is something that in the letter I just thought was 
inappropriate and I thought I would mention it to you.
    I do have concerns about the proposed rule but I believe 
adjustments can be made without undermining the intent or the 
letter of the law. We have formed an interagency group with EPA 
to work through our concerns. The group has been meeting 
regularly. It is making progress and I want to make it clear 
that EPA has been more than willing to work with USDA in 
dealing with the problems that we are raising and I will talk 
about today a little bit.
    For example, number one, and Senator Lincoln talked about 
this, I believe the rules should recognize the best management 
practices of America's farmers and ranchers and give necessary 
credit to those best management practices in the rule. I think 
the rule should be more clearly constructed and minimize 
adverse effects, where possible, on agricultural and 
silvicultural operations. And third, it should allow for 
reasonable time frames for planning and implementation.
    I want to take a moment to summarize our major concerns. 
First, the rules should recognize the voluntary conservation 
efforts farmers and ranchers and timber companies are 
practicing on the land. The rule should clarify that a farmer's 
best management practices, such as a streamside buffer on farm 
and forest land, will be taken into account when determining 
how to best meet clean water standards. The fact is over the 
years, the Natural Resources Conservation Service [NRCS], and 
other agencies within USDA have been spending millions of 
people-hours and hundreds of millions of dollars to help 
farmers and ranchers and foresters do the best job they can to 
make sure that the soil and water is protected, and those 
efforts have produced profound positive effects on the country 
and the landscape. And these practices, which continue with the 
technical assistance of NRCS, must be continued.
    I do not want to see farmers confused into believing that 
those practices would become subordinate to a regulatory 
approach, except maybe on the most dire circumstances where 
nothing is being done by anybody.
    Second, the EPA should provide comprehensive cost 
projections of the impact of the proposed rule on agriculture 
and silviculture.
    Third, the rule should clarify if and when the process 
would apply to discharges from silvicultural activities. USDA 
and NRCS knows what works well in implementing, especially the 
Forest Services does, what works well in implementing TMDLs in 
forested watersheds and the rules should reflect our field 
experience. USDA's partnerships have shown that an adaptive and 
collaborative TMDL process that relies on best management 
practices and monitoring often has the best chance of 
efficiently attaining water quality standards.
    What we have found over the last 50- or 60-years is by 
actually working with people, giving them the technical 
assistance and the resources, they will actually do the best 
job of anybody in maintaining their land.
    Finally, we are concerned about the science being used in 
assessing and attributing the effects of nonpoint source 
pollution. Theoretical models have a high level of uncertainty 
and there are gaps in the data regarding what is natural 
background pollution versus what is caused by human actions. So 
these are issues that we need to work very, very closely 
together on in order to create rules which are clear and 
science-based.
    We believe education and partnerships are going to play 
decisive roles in efforts to improve water quality. The 
proposed rule should be fair, clear, and provide farmers 
particularly with great certainty. With this in mind, we are 
diligently working with the EPA to resolve our concerns and I 
am confident, in fact, that we can do this.
    So Mr. Chairman, I thank you for this opportunity to appear 
before your committee and we look forward to your questions.
    [The prepared statement of Secretary Glickman can be found 
in the appendix on page 74.]
    The Chairman. Well, thank you very much, Secretary 
Glickman.
    Ms. Browner, let me make a comment, to be followed by a 
question on the legal authority issue that I raised in my 
opening comments. This comes, and I always hate to reduce these 
arguments to anecdotal, almost parochial situations, but 
Senator Lincoln has raised this in her testimony, as have 
others.
    During this winter season we have harvested on our farms 
some poplar trees that apparently were in the way of what we 
thought were higher value trees. Most people in Indiana know 
that, that we are interested in this, so when these activities 
come I have seen forestry people from all over our state who 
know that I am involved in the business and believe we ought to 
be concerned about this.
    The thing that caught their concern especially was this 
issue that you raise, that most people in silviculture would 
not be affected by that. Yet in a hearing in the New England 
EPA Region I at Concord, New Hampshire on December 17, Mr. 
Kraft said that ``Ultimately, it will be left to the states, 
but we would have to approach each request for a permit to 
conduct a logging or logging-related activity to assure it 
wouldn't harm the water.'' That was very site-specific and 
rather inclusive.
    As a followup, in a more general case, essentially some 
have cited the 1977 DC. Circuit Court opinion of National Rural 
Development Council [NRDC] versus Costle in which the ruling 
was that EPA has no authority to pick and choose which point 
sources to regulate based on whether they are significant 
contributors. That is a problem. In a way, Mr. Kraft, whether 
he was right or wrong, was consistent apparently with the 1977 
case and, quite frankly, this is what drives much of this 
argument.
    One of the reasons we are having the hearings is not only 
the problems that Senator Thomas raised, and he has some very 
large foresters. Western state problems are very, very 
substantial. But in Indiana, we do not have very many large 
foresters. Maybe Senator Lincoln has some of both, for all that 
I know. But in any event, this general discussion has struck 
some fear in the hearts of almost everybody if you have five 
acres or upward if you are talking about everyone and the 
inability of EPA to pick and choose, despite the assurances you 
have given.
    So with all of that build-up, what do you have to say about 
the illegal authority? How can you pick and choose? What 
reassurances can you give to foresters all over the country of 
various sizes?
    Ms. Browner. First of all, as Senator Lincoln pointed out, 
the vast majority of states today run the clean water program 
on a day to day basis in their state. We are not involved on a 
day to day basis. We are not involved in permitting decisions 
on a day to day basis. Nothing in this proposal changes that. 
States would continue to do the job that they have been doing.
    The TMDL is an opportunity for a state to develop a plan 
that reduces the remaining pollution that needs to be reduced. 
It is up to the state to decide where those cost-effective 
reductions can be found. We have tried to be clear, and I am 
now completely convinced that we have failed to be clear, but 
we tried to be clear that when a state develops a plan, a TMDL 
plan, they could give credit for BMPs for voluntary--I will 
read you the language--``voluntary and incentive-based actions 
may also be acceptable measures of reasonable assurances,'' and 
it goes on and on. This is in the Federal Register. This is 
what we said when the proposal went out.
    So in other words, as a state develops a plan and they know 
they have to get so many pounds of nitrogen out of the water, 
out of the stream to make it healthy, they go back and they 
look at the sources of nitrogen and they say we can get so many 
pounds from this industrial source, we can get so many pounds 
from another source, and our best management practices among 
the forestry efforts in our state will get us this many. No 
permit would be required in that instance. They have a plan. 
They have reasonable assurances for getting the pollution 
reductions. They move forward with implementing the plan.
    The vast majority of forestry activities would not require 
permits and I want to be the first to say that we think forests 
are good for water quality and that we think there are 
tremendous things going on across the country already in the 
forestry industry that are enhancing water quality.
    Can I just give you one example of something that we think 
is a great success? The Simpson Northwest Timberlands. EPA and 
the State of Washington reached an agreement with the Simpson 
Timber Company, a large operation, as I understand it, to 
develop and approve a TMDL implementation plan for 250,000-
acres of private forest land, which includes 1,400-miles of 
streams. We worked it out. It is doable.
    Another example is in the Chesapeake Bay. There were some 
very serious problems in the Chesapeake Bay that were occurring 
because of some activities upstream. This was actually a 
program we did, I think, with the State of Maryland and the 
Forest Service to go back in and restore some riparian forest 
buffers. And because of this 60-acres of restoration, we are 
now getting 4,000-pounds of nitrogen reduction, 500-pounds of 
phosphorus and 100-tons of sediment reduction per year.
    These are the kinds of best management practices that are 
already occurring in the country. You probably have them in 
each of your states. This is what we think should occur. We do 
not want to do anything that stands in the way of that. And if 
our proposal somehow or another has confused people, then we 
will fix it because we think that is one of the best tools we 
have for cleaner water at this point in time.
    The Chairman. Well, it is a critical point and a very 
comprehensive and thoughtful answer. As you say, you are still 
formulating and you have commended the timeliness of the 
hearing to hear what you need to consider, and I think this is 
an area which you recognize as really very, very critical, 
given the legal precedents as well as the concerns that are 
persuasive.
    Secretary Glickman, you have mentioned Secretary Lyons' 
letter on October 22, and the fact that although you did not 
sign off, you share many of the views. My understanding is that 
many professionals in USDA were deeply concerned about EPA's 
proposals, that Secretary Lyons was not acting simply in a fit 
of creativity, that he was sort of bringing those concerns to 
the fore.
    Secretary Glickman. It was certainly not in a fit, but I do 
not know about creativity or not.
    The Chairman. Subsequently they have been more broadly 
shared. I do not want to berate the issue of why the 
consultation and coordination between the two agencies did not 
occur perhaps as much as it might have before then. Your 
assurance today is that whatever that might have been, it now 
is very intense and you both are here today, which we 
appreciate.
    Secretary Glickman. That is correct.
    The Chairman. And that is important. At least in your full 
testimony you have stated that EPA should provide a 
comprehensive cost projection of the impact of the proposed 
TMDL rule on agriculture and silviculture. My concern is that 
probably you and the department ought to produce such a thing, 
to give at least from the standpoint of American farmers and 
ranchers, some idea of what you project the problem is. It 
could be a cooperative one but I just sense that those of us 
who are involved in the agricultural side of this would like 
the views of the professionals from the USDA as to what is 
involved as all this hearing record is finally being put 
together and we begin to banter this about.
    Now, it is not an academic problem. As we have collected 
testimony for this hearing, the cost estimates range so widely 
as to be almost an astronomical difference, and that is 
unsettling in terms of a public policy situation. So without 
going into histrionics about how far apart we are, I would just 
ask you to zero in on that project.
    Likewise, with the Conservation Reserve Program, it would 
appear if USDA accepts more than 1.5-million acres through the 
recently concluded regular signup, it might encroach on the 
water quality acreage reserve. Now, this has been an important 
point with the Committee and with you with regard to the 
Conservation Reserve Program [CRP] program because the Clean 
Water Act Action Plan of 1998 was to hold back 4-million acres 
under the CRP enrollment cap for continuous signup.
    Now, red flags may be down there at the department sort of 
understanding that we are getting close, I think, to the limits 
there but would you review that? Give us some assurance that 
the plans we already think were in operation that are certainly 
pertinent to what we are talking about today are not in the 
breach here.
    Secretary Glickman. We will. And again this is one of the 
concerns that has been expressed by our technical people, that 
here we are bidding in a lot of land in problem areas and 
taking it out of production for a long time and we do not want 
to see those efforts unnecessarily disturbed, and I do not 
think they need to be, but that is part of the review process.
    The Chairman. One of the reasons that the CRP and the farm 
bill's aspect of that, that has been widely commended is that 
there were very important point totals given for these 
environmental assets that were to be preserved, so this is 
another one of those points. You have made proposals elsewhere, 
in other fora, about CRP and additional things we might do.
    Secretary Glickman. Right.
    The Chairman. And I have commended many of those thoughts, 
but even at the same time, we do not want to undo that which 
seems to be very useful.
    Let me, for the sake of the record and my enthusiasm over 
Mr. Kraft's testimony, which is about to occur, I gave him the 
title of the EPA Administrator Region I. He was not the person 
who testified in that region but he does mention that testimony 
in his testimony today, so just for the sake of the record I 
would like to clear up who said what.
    Senator Harkin?
    Senator Harkin. Thank you very much, Mr. Chairman.
    I will kind of cut to the quick on this perhaps a little 
bit in terms of silviculture. There is testimony I read that is 
going to be given later by Mr. Adler--I was reading his 
testimony and he said obviously the forest industry is fearful 
that these new proposed regulations, if implemented, would have 
some economic impact on them. He said clearly that is going to 
be the case in many instances.
    Again it seems to me that when you are talking about 
forestry, just as you talk about agriculture, that there can be 
point and nonpoint sources of pollution coming from them. I am 
wondering if you are thinking in terms of the proposed 
regulations as treating all forest operations as point sources 
of pollution. I do not know what you are thinking there. Or is 
this going to be maybe yes in some cases and no in other cases? 
Maybe you could explain that for me a little bit, Ms. Browner.
    Ms. Browner. You are exactly right. There are some 
activities that generate a point source discharge and there are 
other activities which, quite frankly, do not.
    The way the statute was set up, and I think the easiest way 
to think about it is that EPA, nor the states, can require a 
permit for nonpoint source runoff. A permit can be required for 
point source, and clearly we would all agree for industry, for 
large cities, for stormwater, and for those activities that 
significantly contribute to the detriment or the degradation of 
a water body.
    So it is conceivable, and when we talk about the vast 
majority of silviculture activities would not require any kind 
of permit, I think we all know there are bad actors. We all 
know that, in every industry. It is unfortunate. There are the 
leaders, there are the people who are the visionaries, and then 
there are the bad actors.
    I want to be clear. We are quite sure that there will be 
those out there, the bad actors, who are conducting their 
business in such a way that it is a point source that is 
contributing to the degradation of a stream and therefore the 
state can require them to get a permit. We believe that is a 
relatively small number of companies and that for the vast 
majority, the kind of best management practices that are in 
their own interests, that they are already engaged in, will be 
what they simply continue to do.
    But for nonpoint sources, and we will provide, Mr. 
Chairman, with your permission, for the record a letter we sent 
to Senator Baucus yesterday in an effort to once again clarify 
this, we are very clear for nonpoint sources we cannot require 
a Federal permit, period. The Clean Water Act did not give us 
that authority. Nor would we be asking for that authority.
    [The information referred to can be found in the appendix 
on page 245.]
    Senator Harkin. I think that outlines and cuts to the quick 
of what we are talking about. The only thing that is sort of 
left dangling there is definitions. How will you spell out in 
the new regulations how you are going to decide what is point 
and what is nonpoint? I mean obviously there are the clear 
instances we know of.
    Ms. Browner. That is right.
    Senator Harkin. Then there are some that maybe get into 
gray areas. How are you going to provide some distinct lines so 
people know whether or not they are engaged in point source-
type activities that could contribute to point source 
pollution?
    Ms. Browner. I think that your comment is very on target. 
It is something we agree that we need to make clearer in the 
final program. I think that it is fair to say, and Secretary 
Glickman said this is not easy stuff. It will be easy, I think, 
out in the field, but what we have to write down to jump 
through all of the hoops that we are required to in creating a 
program and to try and reflect all of the debate that we heard 
makes for very difficult reading. I am the first to admit that.
    I think there are several areas where we have heard 
repeatedly that we probably could have said it more clearly; we 
probably could offer more examples so that the states, when 
they develop their programs--I mean let me remind you, and this 
is the second point I would simply make--EPA does not write 
these. The states go out and write the TMDLs. They decide where 
the best place is to get the reductions from. They decide how 
much credit they can give to best management practices. That is 
done by the states, but clearly we need to give better guidance 
to the states on what they should be giving credit for, on what 
the definitions are, and I think your point is extremely well 
taken and it is something that we need to work with USDA and we 
would be happy to work with this committee and others to try 
and fix in the coming months.
    I think we can fix it. I think we have learned a lot in 
these public hearings and it is something we need to fix.
    Senator Harkin. I wanted to focus on the forestry issue a 
little bit because I think that is really where you are going 
to get a lot of the rub on this.
    Ms. Browner. Yes.
    Senator Harkin. Obviously row crop farmers now are fearing 
that wait a minute; if you can broaden this point source 
solution that broadly, then maybe they will be affected by it, 
too. So I think there is more than a little bit of legitimate 
fear from row crop farmers.
    Now having said that, to the extent that we can continue 
down the road that Secretary Glickman has so courageously, I 
think, structured, and that is a combination of different 
approaches--the Conservation Reserve Program, extending it 
along the boundaries of waterways and making those longer-term-
type permits--I think that is a great way to go. Extending the 
strips--I forget what they are called--the waterway strips and 
things that you have done in the past----
    Secretary Glickman. Buffer strips.
    Senator Harkin. Buffer strips--I could not remember the 
word--the buffer strips, I think has just done great stuff out 
there, and that has been very courageous, to take that step 
forward.
    Second, implementing the voluntary-type programs. Now, I am 
not an expert on forestry. I do not know a lick about it. But 
it seems to me that what we have done in terms of the voluntary 
programs and what we are trying to do with the large animal 
feeding operations might have some applicability over there in 
terms of some standards, some national standards that we are 
doing in large animal feeding operations but more in terms of 
providing incentives for farmers to conduct their own 
conservation practices.
    I do not know if that is applicable in forestry or not. I 
just do not know, but it is working in row crop agriculture.
    I appreciate the department's support of the Conservation 
Security Program and the money that is in the budget this year 
for that. I think that is going to go a long way toward again 
helping our nonpoint sources of pollution in row crop.
    I am just wondering if there is any such kind of thought in 
terms of forestry, the type of incentive-based program in 
forestry that would be voluntary and which again would be in 
their best interest. I just do not know if that is applicable 
to forestry or not.
    Secretary Glickman. Under Secretary Lyons may be able to 
comment quickly on that.
    Mr. Lyons. Senator, we do have similar programs to help 
private forest landowners, private nonindustrial forest 
landowners in particular, and these are programs actually 
authorized, in part, by this committee in the 1990 farm bill. 
One is the stewardship program, the Stewardship Incentive 
Program, and those programs provide funding to private 
landowners to help them put in place conservation practices to 
address water quality concerns, wildlife habitat concerns, and 
the like.
    Unfortunately, those programs have been woefully 
underfunded, worse so than the conservation programs. So we 
have had a difficult time getting traction, if you will, and 
getting those in place. But where they have been put in place, 
we have had some substantial success.
    Senator Harkin. One last thing, Mr. Chairman. I do not know 
if I can stay for the entire hearing but I just wanted to say 
that I am sending a letter to both of you today. ``I just 
wanted to state that I have strongly supported your agencies' 
joint efforts on the unified national strategy on animal 
feeding operations.''
    ``However unfortunately, with the release of the Draft 
Guidance Manual and the Draft Comprehensive Nutrient Management 
Plans, it appears that USDA and EPA are not fully working 
together as partners to develop an enforceable approach to 
address the serious issue of impaired waters from feedlots.''
    ``So I am sending a letter to both of you today outlining 
my concern that your current approach would lead to confusing 
regulations for large, confined animal feeding operations.''
    Again I thought we got off on a great start here a year or 
so ago. I thought people were working together but I am 
wondering now if we are starting to diverge here on the 
regulations that are being developed. As I said, I do not need 
a comment. I will send the letter to you and I would appreciate 
your responding to it as soon as possible.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Harkin.
    Mention has been made of Senator Baucus. He is unavoidably 
detained in Montana on pressing business today but he has given 
us a statement and his statement will be placed in the record 
along with the opening statements of the senators.
    [The prepared statement of Senator Baucus can be found in 
the appendix on page 80.]
    Senator Lincoln?
    Senator Lincoln. Thank you, Mr. Chairman, and thanks to the 
witnesses, Secretary Glickman and Administrator Browner, for 
being willing to come and visit with us, and I appreciate your 
offer to work with us on this because perhaps there has been a 
great deal of confusion, to the tune of at the first meeting we 
had in Arkansas we had 1,500-people show up and the second 
meeting we had 3,000-individuals show up.
    Well, we are going to have another meeting in March and you 
very graciously had your Region-VI EPA folks at the first two 
meetings and I would encourage both you and the secretary, if 
you could not attend, that you would send someone from 
Washington to be in attendance at that next meeting--I think it 
is March 7--which would be very appropriate to answer some 
questions, because there is a great deal of confusion. I agree 
with you that eliminating that confusion is absolutely 
essential.
    Secretary Glickman mentioned one of the biggest problems 
for agricultural producers is uncertainty. The variables that 
they had to deal with. The fact is that I think that is the 
biggest problem that we have with your regulation, is the 
uncertainty and the unpredictability for both agriculture, as 
well as forestry.
    I concentrate on forestry because the point, in fact, is 
forestry has gone certainly in our state a great deal to try 
and work with EPA and the PCNE, the other groups, to try and 
come up with some really, really far-reaching opportunities to 
do best management practices in conservation.
    You make the comment repeatedly that these are things that 
the states do. I would just add to that, that the states do not 
do these, they do not set these regulations, nor do they put 
them into effect, unless they get your approval. This is not 
something they act on alone. The states do not go in one 
direction and EPA in another. When they go through most of 
setting these standards, they are things that they do in 
conjunction with EPA. It is not just something the states do, 
as I said, on their own. So I think it is important to 
recognize that.
    As we look at what the regs have put forward, maybe if you 
could clarify some of the things here, a couple of questions 
that I have. One, where you have a situation where you have a 
best management practice in place, has there been any 
consideration that the regulations would only apply to states 
who do not have an EPA-approved best management practices? 
Obviously----
    Ms. Browner. You are not the first person to raise this and 
it is certainly something we are willing to look at. In some 
ways it fits back a little bit to Senator Harkin's question in 
that what is a best management practice? I think that is 
something we would need to work out with the states.
    Senator Lincoln. You already you. You approve their plans.
    Ms. Browner. We understand that; I understand that. And 
that might be one threshold, but you may also have other states 
coming forward with new types of best management practices; how 
could we incorporate those? So that is something we are willing 
to look at.
    Senator Lincoln. All I am saying is that in each state you 
either approve or disapprove their environmental programs. They 
are not acting on their own.
    Ms. Browner. I am happy to spend some time explaining to 
you what approve or disapprove means. It is not quite as black 
and white, I think, as perhaps some may have suggested. It is a 
complicated process that we go through in making the decision 
to delegate and then in making sure that within a broad program 
like clean water or clean air, that all of the components are 
working. We would be happy to sit down and walk you through it.
    But I think that the basic thrust of what I hear you asking 
is in those instances where best management programs have been 
approved by EPA, how would we incorporate that into the states? 
Or how would we allow the states to incorporate that into the 
TMDL program? And I think we are very open to that. We think it 
is a good idea. We simply need to work with people to 
understand how best to do it.
    Senator Lincoln. Well, I just know that if I am trying to 
teach something to my children, it is much easier if I teach 
them the benefits that they are going to get out of it and help 
them work to do it themselves, as opposed to just applying more 
demands on them.
    I think that in what you have done in the best management 
practices has produced an awful lot of goodwill and 
conservation and reaching the objectives that we all want to 
reach. I would hate to see an unnecessary, overburdensome-type 
regulation. And as you clarify it, maybe it will not be that 
way, and I hope that is the case, and we would like to work 
with you on that.
    We would like to just kind of get a few clarifications on 
the TMDL regulations that you have put forward. Could the 
regulations that you have out there be extended to encompass 
all of the activities within the watershed of the listed water 
body, or will they be limited to the properties adjacent to the 
list water body?
    Ms. Browner. I am going to ask Mr. Fox to answer.
    Mr. Fox. Senator, the way we have proposed the rule, it 
would be limited only to those landowners and those properties 
that have a documented water quality problem. In fact, the 
Agency, the state or Federal agency, would have to make a 
specific finding that there is, in fact, a problem associated 
with this landowner. We did not envision at this time that it 
would be applied on a watershed basis.
    Senator Lincoln. So it is not your intent to apply it to 
the watershed basis; is that correct?
    Mr. Fox. As we propose it, that is correct.
    Senator Lincoln. OK. The regulation as it deals with waters 
that are not listed but are considered impaired, will this only 
apply to the official 303(d) list of waters?
    Ms. Browner. It only applies--maybe your state has some 
list that we are not immediately familiar with. This applies to 
the 303(d) listed waters.
    Senator Lincoln. Only.
    Ms. Browner. Some states have their own state processes in 
addition to the 303(d) and we would be happy to talk to you 
about Arkansas. They may have something that we, off the top of 
our heads, do not know. Someone seems to be telling us that, 
that may be the case. But the intention is 303(d).
    Senator Lincoln. Your intent is to focus on a 303(d) list. 
OK. Well, I might want some more clarification on that if it is 
possible.
    Just in talking about the point and the nonpoint sources 
and, as Senator Harkin mentioned, those definitions, in reading 
your proposed rule and noting that you specifically go back to 
or specify that certainly agriculture was not focussed in on in 
terms of definitions until 1977 and 1987, where the specifics 
on return flows from irrigated agriculture and agriculture 
stormwater were specified out statutorily, but you go on down 
and when asked which silviculture discharged would be designed 
under today's proposal as source subjects to the program, you 
state for the sources that were categorically excluded 
previously--nursery operations, site preparation, reforestation 
and subsequent culture treatment--thinning, prescribed burning, 
pest and fire control, harvesting operations, surface drainage 
or road construction and maintenance--that categorical 
exclusion from the definition of point source would be removed.
    So in other words, you are leaving it up to a subjective 
decision by yourself as to whether or not that is going to be a 
point or a nonpoint source?
    Ms. Browner. I am going to be very honest with you. We are 
having a hard time understanding your question. We are happy to 
try and answer it for you but I am happy--I was trying to make 
sure I understood which section you were even in and right now 
we are a little bit confused.
    So Mr. Chairman and Senator Lincoln, if it would be 
appropriate, we would happy to answer all of these in writing 
or to meet with you individually. You just--I cannot understand 
what you are asking me at this particular moment.
    Senator Lincoln. Well, I just think it is important for us 
to know how you have defined and what you have put yourself in 
the position of being discretionary over in terms of point and 
nonpoint sources.
    Ms. Browner. We do not disagree but I think we need to know 
which section you are in so we understand.
    Senator Lincoln. OK, I have the Federal Register right here 
and it is just your answers that you have submitted from your 
regulations in the Federal Register and I will be glad to offer 
that to you and have you answer them in writing.
    I would just again encourage us all to work on something 
that can be predictable and certain to the individuals that are 
dealing with it. I would encourage you to come to some of the 
meetings that we are subjected to so that you can give some of 
those answers to the people who do feel an uncertainty in what 
has been prescribed in the rule and regulation.
    So, I think that is very important as we go through this 
because there are a lot of people who are alarmed in the 
definitions that have been provided and what has been done and 
also, I think just in the past history of what EPA has done in 
many instances in their interpretations and the way that they 
go about interpreting the intent of what Congress is out there 
to do. So I would encourage you to work with us, please.
    I will, Mr. Chairman, be glad to submit to the 
administrator my questions in writing so if she would choose to 
answer them in writing, that is fine.
    The Chairman. If the senator will put the questions in 
writing we will ask the administrator to respond in writing on 
due reflection and have clarification.
    Ms. Browner. Great. Thank you.
    The Chairman. I know that you must leave in just a few 
minutes, Administrator Browner, so as a result, I am going to 
ask Senator Fitzgerald--he has a couple of questions that he 
wants to ask whole both you and Secretary Glickman are here. 
Then Mr. Fox, I understand, could continue onward if necessary.

  STATEMENT OF HON. PETER G. FITZGERALD, A U.S. SENATOR FROM 
                            ILLINOIS

    Senator Fitzgerald. Thank you, Mr. Chairman.
    I appreciate both of you being here and I am wondering with 
the Chairman's dispensation, if I could not shift gears just a 
little bit. We are so fortunate to have our distinguished 
Agriculture Secretary and EPA Administrator on the same panel.
    I wondered if I could talk a little bit about the ethanol 
program. Administrator Browner, I know you have been kind 
enough to meet with members of the Illinois delegation on this 
and we are hoping to have a large meeting with House and Senate 
members with both of you. I know we sent you a letter. We sent 
it actually to the President. Maybe he has not sent it down to 
you. But we would love to have that joint meeting. There are 
about 40-members from the House and Senate who have requested a 
meeting with both of you to discuss the reformulated fuel 
program.
    But Administrator Browner, I was wondering; I am very 
concerned about the viability of ethanol in phase two of the 
RFG program. I was wondering whether the EPA is taking any 
steps toward providing ethanol with a carbon monoxide credit so 
that it could continue to remain the choice oxygenate, at least 
in Chicago where it is heavily used and very popular. I do not 
know if you would be able to comment on that.
    Ms. Browner. Senator Fitzgerald, as I think I shared with 
you and the Illinois delegation in I think it was two meetings 
we actually had, the administration, EPA was looking at the 
issue and Senator Harkin, you are well versed on this issue of 
revapor pressure, and that we would be making a proposal in 
terms of the revapor pressure in light of a National Academy of 
Sciences report.
    We had hoped to get that done a little bit sooner than we 
have but it is winding its way through the Office of Management 
and Budget [OMB] review process and will be shortly put out in 
the Federal Register. So, we have taken into account the 
Academy's review and all of the issues as we understood them 
and we will going out on a notice and comment in terms of the 
revapor pressure issue.
    Senator Fitzgerald. What you sent to the OMB, I understood 
you sent something there regarding regulating MTBE as an 
oxygenate. Is that----
    Ms. Browner. I am talking about Reid Vapor Pressure [RVP] 
right now. I am talking solely about the RVP, which is in the 
RFG round two program. That is all I am talking about.
    Senator Fitzgerald. OK. Well, I appreciate that and we look 
forward to talking to you about that.
    Secretary Glickman, I understand the USDA has recently been 
assessing the impacts of an MTBE phase-out and ethanol 
replacement in the California market and I do not know if you 
have any results of that assessment that you might be able to 
share with us. I noted in Illinois, ethanol is 16-percent of 
the market for our farmers' corn and it is probably not that 
high in other corn states--Illinois is the leading ethanol 
producer in the country.
    But I wonder what effect might that have on farm income at 
a time, as you pointed out in your testimony, that prices have 
hit rock bottom and farmers have really been suffering across 
the country?
    Secretary Glickman. I do not have a specific answer. I will 
go back and ask our chief economist whether he has done any 
economic impact studies. We are working with EPA on the MTBE 
issue. Obviously USDA has a great interest in the ethanol issue 
for a lot of different reasons, much of which are compatible 
with yours.
    Senator Fitzgerald. So that study is not yet completed, the 
economic study?
    Secretary Glickman. Deputy Secretary Rominger will respond.
    Mr. Rominger. I do not have the figure with me but I think 
our chief economist did complete that study and it did show 
that if ethanol did replace MTBE, it would have an effect on 
the price of corn.
    Senator Fitzgerald. And the farmers' income. And that would 
probably, in turn, have effects on the farm programs by 
reducing the cost of the loan deficiency payments and the like.
    Do you know if that analysis addressed ethanol's ability to 
replace--the ethanol industry's ability to replace MTBE in the 
California market in 3-years, over 3-years?
    Mr. Rominger. I think, as I recall, that the production of 
ethanol would have to be increased but they felt that it was 
possible, would be possible to increase the production of 
ethanol to be able to fill that market.
    Senator Fitzgerald. Well, I appreciate that opportunity to 
switch gears a little bit.
    Administrator Browner, did you want to add something?
    Ms. Browner. Yes. I just thought it might be helpful to the 
Committee--I know this will be an issue of great interest to 
many. Approximately 2-weeks ago, 3-weeks ago, California did 
complete a file, a submission to EPA seeking a waiver from the 
2-percent oxygenate requirement in the Clean Air Act for the 
reformulated gasoline program.
    Independently, California has passed a state law that 
effectively bans MTBE, which is one of the oxygenates currently 
available within California within--I might get the year wrong 
but I think it is two to 3-years.
    The waiver petition to EPA, the argument that California is 
seeking to make, it is a very technical, highly modeled type 
analysis that will have to be done but essentially they are 
suggesting that the use of an oxygenate in their fuels--and 
remember, California fuels are somewhat different than fuels in 
the rest of the country; they have been in a different fuel 
program, given the nature of their air pollution challenges--
that the use of an oxygenate could actually contribute to 
increases in some pollution parameters.
    This is a technical question and they have provided to us 
all of the modeling that they believe demonstrates that, all of 
these things that are called inputs and outputs and I do not 
even understand it after a while, and our technical people are 
now reviewing it. It will take some period of time for that 
review. It is a highly complicated computer-type review that 
has to be done.
    When we complete that review, which will take us some 
time--it could be months--we will then go through a notice and 
comment process--Federal Register notice as to how we read the 
models that California gave us, how they read them, if there is 
some disagreement, what we believe the law allows for, and what 
we would propose to do. Then we will take comment on it and 
then after the comment period, we would make a final decision 
on whether or not California's request for a waiver from the 2 
percent oxygenate would be granted based on legal and technical 
grounds.
    Senator Fitzgerald. Will you be able to take into 
consideration other factors, like the impact on farm income of 
the loss of that kind of market, or do you have to do it--will 
you need some congressional help to think in broader public 
policy terms?
    Ms. Browner. I should point out the provision in the Clean 
Air Act which California is relying on is a provision that has 
not, to my knowledge--I do not have any air people; these are 
all water people--to my knowledge is not a provision that has 
previously been used.
    I know this for a fact. EPA has never received a request 
for a waiver from the 2-percent oxygenate. In terms of what 
factors we are allowed to review, that is obviously something 
that everyone, I am sure, will have a point of view on and we 
will be happy to share with us.
    I should say that we do believe that the Clean Air Act does 
create that opportunity to seek a waiver, that there is no 
question in our minds about the right of a state to apply for a 
waiver, that Congress was clear in that respect. But in terms 
of what you have to demonstrate and what kind of modeling is 
sufficient and what kind of factors then get included in that 
analysis is something we are currently working on.
    Senator Fitzgerald. Well, we will look forward to 
continuing our discussions with you. If you could keep in mind 
that meeting that we are hoping to get--in fact, we wanted to 
have the Energy Secretary there, as well, and maybe if the 
three of you could talk with the House and Senate members who 
requested that meeting, I will follow up on that. I think the 
letter was actually sent to the White House.
    So we will follow up with that and we appreciate very much 
your hard work, both on behalf of the environment and on behalf 
of our farmers. Thank you.
    The Chairman. Just to try to bring some simplicity to what 
just transpired, is it not the case that we had a debate on the 
Senate floor in which the senator from California, Senator 
Boxer, and others were talking about MTBE and the fact that 
this was unhealthy for her state?
    So the thought immediately arose--Senator Fitzgerald, 
Senator Harkin and I all sort of shared this thought, that, in 
fact, if ethanol could replace MTBE, this might be a good thing 
for clean air in California, as well as farm income.
    Now to that respect, Mr. Rominger has conducted a study, or 
his colleagues, and they found that, in fact, it does have a 
price effect. Predictably, if you send more ethanol to 
California, more corn goes into ethanol and all the rest. It 
could relieve LDPs at another level from which we are now 
talking, so there is another good effect there, too.
    Now as I understand, however, in this highly modeling 
effect you are talking about, some people out in California 
have said hold on; before you send all the ethanol out there, 
are there some problems in the environment with the ethanol? In 
other words, as we are replacing MTBE, do we run into some 
other dilemmas? And we do not know, and this is being studied, 
among other things. And, of course, those of us who are corn 
farmers find urgency in the study coming to conclusion as 
rapidly as possible if the verdict is to be a favorable one so 
we can move on.
    Now it seems to me it would be helpful, and this is one 
value of the senator's question, of having this dual appearance 
today. This is an EPA question; it is an agricultural question, 
I think, for the common sense rules I just stated. Probably 
Secretary Rominger's study, which is there probably, not well 
known to any of us, we need to exhume and sort of circulate. 
Likewise, some state of play as to what is going on in 
California.
    If it is this consideration by EPA and the modeling and the 
several months, all of us keep this--we get it in fragments 
from time to time. We have community meetings of 
environmentalists, corn farmers, other advocates of ethanol.
    And I suppose while we are at it on the ethanol situation, 
and this comes just anecdotally likewise, given the price of 
corn, which is low, the price of petroleum, which is high, a 
good number of people have been wondering in a common sense way 
in America, has the spread between the cost basis of the two 
narrowed? And the answer is yes but the question is how much? 
And this is tremendously interesting. We are getting answers 
all over the place. There are sales in Nebraska that raise 
questions as to whether almost parity has been achieved.
    Now, people rushed in to point out no, that has not 
occurred as yet; there is still a gap. But to the extent the 
Department of Agriculture can furnish this committee and 
therefore the rest of the American public some really 
economist-based facts on this, why, this is going to help the 
debate immeasurably, I believe, and take it at least a few 
steps further.
    Secretary Glickman. We will make sure you get whatever 
studies we have.
    Ms. Browner. If I might, Mr. Chairman, just in closing on 
this particular issue, it is a difficult and a complicated 
issue. I want to be very clear.
    For a long time now, EPA has been concerned about MTBE. We 
commissioned a blue ribbon panel. We have embraced the 
recommendations of that blue ribbon panel. We have called upon 
Congress to help us address the problem and we would be--I 
think everyone in the administration remains very hopeful that, 
that opportunity could present itself and that we could all 
work together to find an appropriate solution, given our 
concerns about MTBE.
    I do not think there is any administration--President, Vice 
President, EPA, USDA, Department of Energy--that has done more 
for ethanol. We are big, big believers in renewal energy 
sources and in the role of ethanol. We also have a concern 
about MTBE. They happen to be caught up in the same statute. It 
would be very, very helpful, I think to all of us, if we could 
work together.
    The Chairman. Excellent. Well, we thank the entire panel, 
especially the Administrator and the Secretary. It has been 
quite a devotion of your time today but you have been helpful 
to us and thank you for coming.
    The chair would like to call now a panel of state and 
private witnesses, and this will include Mr. James A. Kraft 
representing forestry. He is vice president and general counsel 
and secretary of Plum Creek Timber Company, Incorporated.
    Mr. Paul Johnson, representing state conservation agencies, 
is the former chief of the USDA Natural Resources Conservation 
Service, director of the Iowa Department of Natural Resources.
    Third, Ms. Roberta Savage, representing water 
administrators, is executive director of the Association of 
State and Interstate Water Pollution Control Administrators.
    Mr. Robert Adler, representing clean water network 
environmental organizations, is professor of law and interim 
director, Wallace Stegner Center for Land Resources and the 
Environment of the University of Utah College of Law.
    And Mr. John Barrett, representing agriculture, is a cotton 
and grain producer from Edroy, Texas.
    It is great to have all of you before us this morning. We 
will ask for the sake of full discussion by you and the 
Committee, that you try to limit your comments to 5 minutes. 
This will not be rigorous in the event that this is impossible, 
because, as you noted, the Committee has been liberal in terms 
of time to make sure we have a full discussion.
    Let me start in the order I introduced you. Mr. Kraft has 
already been mentioned by me mistakenly in a role that he did 
not take, as EPA administrator in Region I, but he did mention 
that testimony, which was important, with our dialogue with the 
first witnesses. Mr. Kraft, would you give your testimony?

 STATEMENT OF JAMES A. KRAFT, VICE PRESIDENT, GENERAL COUNSEL 
  AND SECRETARY, PLUM CREEK TIMBER COMPANY, INC., SEATTLE, WA

    Mr. Kraft. Thank you, Mr. Chairman. I appreciate the 
opportunity to testify today on behalf of the American Forest 
and Paper Association on EPA's proposed Clean Water Act 
regulations. While AF&PA represents the manufacturers of wood 
and paper products, all of whom have serious concerns with a 
multitude of other program changes contained in this 
rulemaking, I will confine all of my remarks today on the 
forestry components of the National Pollution Discharge 
Elimination System [NPDES] rule.
    I would like to cover four things today. First I would like 
to point out the effectiveness of the current programs under 
Section 319. Second, I would like to point out that this 
current proposal will impose substantial economic burdens and 
will be unwieldy and inefficient, as was described by Senators 
Baucus, Wyden and Murray in a recent letter to the EPA. Third, 
I would like to go into what I believe is EPA's lack of legal 
authority to pass this regulation. And lastly, I would like to 
propose some common sense alternatives.
    First, I would like to focus on EPA's decision to abandon 
almost three decades of statutory interpretation of the Clean 
Water Act and case law by eliminating the designation of 
forestry as a nonpoint source activity. EPA has contended that 
because silvicultural activities can be a cause of water 
quality impairment, that this gives them the discretionary 
license to label such activities as point sources. However, 
EPA's citation of silviculture's impact on water quality is 
selective and runs counter to our own experience throughout our 
ownership. At Plum Creek we have 3.3-million acres of 
timberland in the states of Washington, Idaho, Montana, 
Arkansas, Louisiana and Maine.
    In every state with significant forest management, those 
states have forestry best management practices or rules. These 
programs have been submitted to and approved by EPA as part of 
the Section 319 nonpoint source program. More than 20-states 
conduct periodic BMP compliance surveys. Others have even gone 
further and are conducting statewide BMP effectiveness studies 
to measure water quality upstream and downstream of forestry 
activities.
    The results of these studies demonstrate the general 
effectiveness of BMP programs and I think Administrator Browner 
rightly pointed out earlier in her testimony that there are a 
lot of success stories under the current program, and I think 
she is right.
    I think the studies are also helping us to determine how to 
better improve the BMPs as we go forward. Take the state of 
Montana, for example, where our company has 1.5-million-acres 
of timberland. Over the past decade, Montana has developed a 
pretty rigorous BMP program and a compliance survey. We get 
audited on our performance. The most recent results found 
successful implementation statewide of BMPs averaged 94-percent 
and our company is well over or pretty close to 100-percent; it 
is in the 98-97 percent range. That is up from 78-percent in 
1990.
    This improvement was achieved not through heavy-handed, 
top-down regulations but was brought about by locally led 
efforts to educate loggers and landowners.
    Even using EPA's most recently available public data, only 
11 states listed silviculture as a cause of impairment on their 
Section 303(d) lists. Further, almost two-thirds of the stream 
segments listed due to silviculture were from one state--
Montana.
    However, this list has been found to be highly inaccurate. 
In 1997 Montana began requiring documentation of the scientific 
basis for the listing of water quality limited streams. 
Montana's Department of Environmental Quality has found that 
credible data was lacking to justify listing in over half the 
streams on the original list.
    In my written testimony that I submitted there are a number 
of other specific statistics but in the interest of time I will 
not go into that, as to why silviculture and forestry is a 
relatively minor cause of water quality impairment across the 
country.
    I would like now to shift to my second point, which is the 
economic burdens that would be created by the proposed rules 
and comment on the ineffectiveness and the unwieldy nature of 
the proposal.
    The forestry community is struck by the heavy-handed 
command-and-control approach that this rule incorporates. It 
would be imposed upon the states and private landowners 
throughout the country. EPA's economic analysis that 
accompanies the proposed rules is inadequate. According to 
AF&PA assessments supported by the work of five independent 
economists, the incremental economic burden to landowners, 
operators, communities and government agencies could easily 
exceed $1 billion annually nationwide.
    The administrative costs alone of an NPDES program for 
silviculture, even in the unlikely event, and I would like to 
get into that later because I think a very good question was 
asked earlier that I would like to answer--even in the unlikely 
event that this rule would be invoked sparingly, only for bad 
actors, the cost would exceed EPA's estimates by severalfold. 
Because the economic impact will far exceed $100 million 
annually, we believe that EPA must conduct more detailed and 
comprehensive cost-benefit economic analysis of this proposed 
rule.
    Not only would the economic burdens be greater than the 
proposal recognizes but it is hard to comprehend, sitting here, 
as someone who deals with forestry activities every day, how 
the EPA would develop and implement a workable NPDES permitting 
system for the thousands upon thousands of forestry activities 
that occur every year.
    Another concern that we would like to share here about the 
burdens and the inefficiencies of this rule is the impact it 
would have on voluntary conservation efforts that are today 
working to protect and improve water quality. And one thing 
that our company has been very interested in and I think the 
Simpson HCP was mentioned earlier today, there are millions of 
acres of private land that are today covered by habitat 
conservation plans, which, as you know, are approved by the 
U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service under the Endangered Species Act to protect 
fish and wildlife habitat.
    Many of these plans are designed to protect water quality 
and fish habitat. Our fear is that this proposed rule would 
have a great potential to undermine these efforts that are 
being so successful.
    Just as an example for our company, we are very near 
completion of a massive habitat conservation plan in our 
Northwest ownership covering 17-species of fish, including 
salmon and trout, for 1.7-million acres of our timberland. If 
these rules were to go into effect as they are currently 
proposed, we could be faced with wholly new requirements from 
another Federal agency for the very same resources that are 
being protected by our plan. And this is a scary thought for us 
because we have invested more than $2 million and 2-years in 
working with the agencies to prepare this plan and I suspect 
that other landowners who would look at this proposed 
requirement and the threat that they might have to obtain NPDES 
permits and comply with a whole new set of TMDL rules would be 
reticent to expend that kind of resource.
    As an aside, our company, as we have gone through this 
process, has kept EPA informed and we are very much interested 
in a voluntary way, working with EPA, to see how this plan can 
dovetail with the needs of the Clean Water Act.
    It appears that EPA is trying to solve all of the perceived 
problems in the Clean Water Act through radical changes to the 
303(d) program and through the designation of silviculture as a 
point source. However, the 303(d) program, as designed by the 
Congress, was never designed to take on such a massive role, 
which leads me to my third topic, that the radical changes 
called for in this proposal have such policy implications that 
it is improper for the EPA to act without specific direction 
from Congress. In fact, the legal analysis that we have done 
shows or would suggest that there is no legal authority under 
the current act for this proposed regulation.
    I go on further to say that we concur with the concerns 
raised by Senators Baucus, Wyden and Murray, which questioned 
the legal underpinnings of the proposal and the need for 
congressional direction on this kind of policy change.
    Under the current proposal, EPA would turn the Clean Water 
Act on its head and would redesignate most forestry activities 
as point sources. I think there was a question there: well, 
what is going to be a point source under this regulation and 
what is not going to be a point source? The answer was well, it 
depends upon whether you are a bad manager or a bad actor. And 
I guess looking at that, there is no way to determine whether 
in someone else's opinion you constitute that and there is 
going to be no way, I think, to figure out if you need a 
permit.
    Despite I think the very well-intentioned limitations 
stated by Administrator Browner that they would use this 
authority only in limited situations and as a last resort, I am 
afraid the courts will not let them do that. Selective 
enforcement of a regulation, in some instances calling it a 
point source and in other cases for the same activity calling 
it a nonpoint source, will not be respected by the courts and 
inevitably I think there would be litigation here that would 
expand the NPDES portions of this rule to all water bodies 
where forest management is conducted.
    The forestry community, many state agencies, governors and 
others oppose the designation of forestry activities as a point 
source. We do not believe there is any legal or statutory 
authority for EPA to revise the regs that would eliminate the 
long-standing recognition of forestry as a nonpoint source 
activity merely to address some unidentified, last-resort 
situations on a case-by-case basis.
    Before I close, Mr. Chairman, I would like to discuss the 
reasonable assurances requirement found in the proposed TMDL 
rule. Setting aside the scientific difficulty of actually 
calculating a daily load from nonpoint sources, the proposed 
rule requires states to build in and have an implementation 
plan for every TMDL. We do not believe that Section 303(d) 
provides EPA with this authority; nor does it provide, as EPA 
contends, that the implementation plans can be approved, 
disapproved or taken over by EPA.
    What it appears to be here is a case of a proposal 
extending Federal enforcement over what has traditionally been 
a state activity. And this is not a minor legal issue but one 
that has enormous consequences for private landowners 
throughout the country, large and small.
    I would like now to turn to my last point, which is 
alternatives.
    The Chairman. Would you summarize that?
    Mr. Kraft. Sure. This will be very quick.
    I think we all share the goal of cleaner water, certainly 
at our company and throughout the AF&PA. I think that there are 
some common-sense things that can be done to achieve those 
goals.
    In essence, I think Section 319 can be made to work. It is 
working. Examples are there that it is working. If we want to 
make it work better, I suggest rather than top-heavy 
regulations that we increase the funding, make the partnerships 
work better, improve the BMP program.
    Mr. Chairman, over 30,000-comments have been submitted on 
these rules and the forestry community represents a sizable 
share of those comments. We feel strongly that only Congress 
should determine how nonpoint source activities are addressed 
under the Clean Water Act. In the end, we believe the current 
proposed rules will discourage the practice of sustainable 
forest management. They will create disincentives to maintain 
timberland in the U.S. In fact, I could see a lot of people 
getting out of the business if these were passed.
    They would stifle economic opportunity and prosperity in 
communities that are desperate to be part of the economic 
revival in this country and it would make it a lot more 
difficult for people--the guys who own 40 acres--to make a 
living off their land.
    This concludes my remarks, Mr. Chairman, and I would 
welcome any questions you have.
    [The prepared statement of Mr. Kraft can be found in the 
appendix on page 81.]
    The Chairman. Thank you very much. Let me say at the outset 
your statement will be published in full in the record, Mr. 
Kraft, and that will be true of each of the witnesses.
    Mr. Johnson?

STATEMENT OF PAUL JOHNSON, DIRECTOR, IOWA DEPARTMENT OF NATURAL 
                   RESOURCES, DES MOINES, IA

    Mr. Johnson. Thank you, Mr. Chairman and Senator Harkin. It 
is good to be with you today.
    In looking at my colleagues on either side, I see they have 
already scratched half of their testimony. I think we could all 
spend an hour with you and still have a lot to say. I will not 
go through my prepared remarks; those are for the record and I 
would urge you to take a look at them.
    But I would start today by reminding you of where we have 
come from. Iowa is working land, probably more developed than 
any other state in the country. We have no national forests, no 
national parks, no wilderness areas. We work it all. Senator 
Harkin, maybe we need to work on that part of it, as well.
    But nonetheless, it is working land and our subject that we 
have in front of us today certainly does impact Iowa. We live 
on this land; we work this land; we are proud of it.
    I am going to skip the remarks that deal directly with the 
TMDL, although I do want to say that although my written 
testimony raises serious concerns about the present TMDL 
proposals, I want to make it very clear that inaction or 
business-as-usual should not be the option. We have made great 
progress in cleaning up our nation's waters but the public is 
asking for more and we believe there should be more and we need 
to accelerate our efforts.
    I would like to take my remaining minutes and maybe offer a 
slightly different perspective on this. I believe there have 
actually been two national clean water acts. 1972 is the one 
that we are talking about now, the foundation on which we are 
presently trying to add additional programs. I do not want you 
to weaken where we are with the Clean Water Act, the 1972 act. 
It has served us well in dealing with point source and should 
provide the underlining coordination and regulatory framework, 
I believe, for dealing with nonpoint, as well.
    But there was another one back in 1935, the Soil 
Conservation Act back then that established conservation on 
private lands in this country. I believe if we had called that 
a Clean Water Act back in 1935, we would probably have even 
more soil conservation than we have today. But I think we 
should recognize the importance of that in the work that has 
gone on over the past 65-years. It, too, has served our Nation 
well. We are a healthier Nation because of it, I believe.
    Two acts, two cultures. Our challenge, I believe, is to 
facilitate convergence of those cultures. You cannot deal with 
the 1972 act without understanding 1935. And I do not believe 
we can take the next steps in our 1935 process without support 
of our 1972 act.
    I would like to make some suggestions for our 1935. The 
delivery system is in place and it is a good one. Just four or 
5-years ago people were wondering whether we should take it 
apart as we move toward a more market-driven farm program.
    Do not take it apart. Strengthen it. We have land grants 
out there. We have ARS. We have good Forest Service research. 
Challenge them to produce the conservation commodities that we 
are talking about here. Think big. I believe you ought to put 
much more resources into research on how we can produce 
conservation commodities from private lands.
    Strengthen the Extension Service. Do not let it fade away. 
As we talk about nonpoint and we talk about the other 
opportunities on private lands, the Extension Service should 
play an important role. So should the Natural Resources 
Conservation Service and the Farm Service's agency.
    Strengthen conservation districts and watershed efforts. 
Locally led conservation can work and we are learning today how 
to do that better.
    I would urge you to support additional technical assistance 
out there. I believe it is tragic that in our mad rush to cut 
government, we have slashed the heart and soul of private lands 
conservation. We should have twice as many people out there 
working with private landowners today, not the number that we 
now have.
    We do not improve education by cutting teachers. We do not 
improve national defense by cutting our military. We do not 
improve medical services by cutting our doctors and nurses. All 
of these are what we are about in the technical assistance that 
we provide private landowners. In fact, it is the private 
landowners who do the conservation, not these people, but these 
people are really needed out there to do it.
    In Iowa we have a huge backlog because of lack of technical 
assistance. In my home county we have a one-year backlog under 
the conservation buffer initiative. We have farmers wanting to 
sign up and enroll them, but we do not have the people out 
there to do it. The same is true on grazing lands; I believe 
same is true on urban stormwater issues. I think that if we had 
technical assistance there, we would start improving our water 
from nonpoint much more rapidly.
    We have a good set of basic conservation rules. EQIP--
Senator Lugar, thank you for that. It is an excellent program. 
RCRA Implementation Plan [RIP], Wetlands Reserve Program [WRP], 
Conservation Reserve Program [CRP], continuous CRP, but I would 
argue that we need more resources in those programs and we need 
more flexibility.
    CRP is probably the one program that is adequately funded 
at this point, although I think some would argue that we could 
always use more. We have almost $2 billion in that program, and 
what does that tell farmers? Do not farm, and you are a good 
conservationist. Yet when it comes to the working lands, the 
lands that we are talking about here today, we have just a 
fraction of that, perhaps one-tenth of it.
    In Iowa we have $100 million backlog right now on WRP and 
floodplain easements, $100 million backlog. Ten years ago I do 
not think you could have gotten a farmer to sign up for that 
program and yet today, $100 million backlog, and that is after 
farmers are already told that there is not much money in the 
program.
    We need more flexibility and we certainly need to start 
rewarding stewardship instead of rewarding people after they 
have made mistakes. We have farmers out there who have buffers 
along rivers and streams. They do not quality for the program. 
They are told to plow them out, farm them for 2-years, and come 
back; then you are eligible for a CRP contract. I think that 
has to change.
    Senator Harkin, I think your proposal and the 
administration's proposal is a wonderful idea. Although it is 
$1.3 billion, I would view that as a pilot, given the 
opportunities that we have.
    I think we need to build consensus for our National Private 
Lands Conservation Act. We have done public lands; we have a 
great start on regulatory. We will continue to argue about 
whether or not they are as good as they ought to be but I think 
it is time we looked at that 70-percent of the land out there 
and looked at ways in which we can really improve our 
conservation on private lands, and that is the heart of what we 
are talking about today.
    Our Governor Vilsack recently called upon Secretary 
Glickman to work with him toward a National Governors 
Conference on Private Lands, similar to what Teddy Roosevelt 
did back at the turn of the century for public lands. I would 
urge you to take part in that, hopefully as our governor will 
continue on that.
    In Iowa this year we are trying to converge the 1935 and 
the 1972 Clean Water Acts, improving our TMDL program, our 
monitoring, our standards, our assessment, and accessing more 
the USDA programs 319 and research. We can make these programs 
work and we can improve our national waters.
    Thank you for the opportunity to be here today.
    [The prepared statement of Mr. Johnson can be found in the 
appendix on page 95.]
    The Chairman. Thank you very much, Mr. Johnson.
    Ms. Savage?

STATEMENT OF ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF 
 STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS, 
                        WASHINGTON, DC.

    Ms. Savage. Thank you very much, Senator. And before I 
begin, I would like to say that normally our association 
invites, and I did invite, a number of state administrators to 
be here but each time I called them they said, ``The state 
legislature is holding a hearing on TMDLs.'' So you have the 
executive director instead.
    Your staff has been wonderful and accommodating. They would 
call me and say, ``Who is going to testify?'' and I would give 
them a name and then they would go into hearing. So your staff 
is wonderful and I appreciate their patience.
    My name is Robbi Savage. I am the executive director of the 
Association of State and Interstate Water Pollution Control 
Administrators.
    I started with the association in 1978 and prior to that I 
worked with the League of Women Voters on the 208-program, 
which was the precursor to our nonpoint source 319-program; and 
prior to that at the United States Environmental Protection 
Agency in the Office of Water, also in the nonpoint source and 
319-program. So I have been involved in these issues for more 
years than I hope you will count up and I have very strong 
feelings about the way this program is being managed across the 
country.
    The states feel very strongly as well and back in 1972 when 
the bill (the Clean Water Act) was passed, it was very clear--
at least we thought it was--that the states would take the lead 
in the clean water program. And prior to the passage of the 
1972 Act States viewed themselves as the professors. When EPA 
was created in 1971, things got all turned around and the 
States, in EPA'S mind became, in essence, the students. That 
relationship has changed somewhat, as you know, over the years, 
but through it all, the states have been at the forefront of 
the clean water program and Congress recognized that in the 
1972 bill, as well as other environmental and natural resource 
statutes.
    The states agree that the TMDL program is a useful tool in 
managing our overall clean water program. It is not the only 
tool; it is one tool. It is a management tool. It is not an 
enforcement tool, and this is an issue that nearly every state 
brought up in its comments. To USEPA on the TMDL Regulations.
    The states believe that they are co-regulators with the 
Federal government and in this relationship with EPA that we 
often call a partnership or a marriage, I tend to think of it 
either as co-regulators or a continuing partnership but in this 
process, we have come forward time after time with EPA to work 
on not only these regulations but the guidance on the 319-
program.
    We cosponsored the Western Governors TMDL forums. We met 
with EPA for an intensive two-day event at the wye Institute to 
discuss the TMDL regulations. We have worked with EPA hand in 
hand on the 319-guidance for the enhancement of the nonpoint 
source 319-program.
    I tell you this because we have tried in every way possible 
to enhance the program on nonpoint sources because we think it 
is an important, a very important issue for water quality 
improvement. On the other hand, we do not believe that the 
enforceability envisioned by EPA is authorized in Section 319 
or in the Clean Water Act.
    Also I would like to say that in working with EPA, we came 
to a number of conclusions and resolutions, but since they were 
still in the Federal Advisory Committee Act [FACA] process in 
the development of the rules, there were no commitments made at 
that point.
    EPA is trying to move the program forward and we understand 
that but the comments that we provided to the EPA, in 
conjunction with the Environmental Council of the States, 
(which is the State secretaries and commissioners, like Paul 
Johnsons around the country), and the Coastal States 
Organization. Together we outlined a number of concerns and 
rather than try to go through those for you one by one as an 
association, I thought it might be more useful to just simply 
read to you some of the state comments that we received.
    And I would like to say, having been at the Agency when the 
term nonpoint source was coined, I remember being in the room 
and sort of fighting over what is a point source and what is a 
nonpoint source, at that point we determined, at least in those 
old days, back in the very early 1970s, that a point source 
would be those things that came from a pipe or a specific point 
that you could look at and point to--hence the name point 
sources. A nonpoint source was just about everything else.
    This clearly has changed over time. You look at the 
stormwater rules for example. Stormwater has now been 
determined to be a point source, versus nonpoint. You look at 
forestry. That is now being determined to be a point source. So 
the definitional issues have changed but the original point and 
nonpoint definitions we thought were very clear and very easy 
to deal with.
    Let me share with you the views of the states. In 
Massachusetts, the role of Section 303(d) has been greatly 
expanded by the proposed regulations. The Department Mass of 
Environmental Protection believes that EPA's proposal is 
overinclusive and questions not only the need for the expansion 
but whether EPA has the statutory authority to propose nonpoint 
source requirements.
    Another state, Delaware commented that the Clean Water 
Action Plan envisions a number collaborative effort to restore 
and sustain the health of our watersheds. The TMDL rule impedes 
the state's watershed approach rather than complements it.
    In Kansas they point out that the degree and detail of the 
prescribed remedies suggested will negative effective TMDL 
establishment and its implementation. EPA has the right and 
duty to expect TMDLs to be developed. However, its right to 
describe the specific details with TMDLs must be limited. The 
effective implementation is a state and local role in directing 
resources on a priority basis in certain geographic areas. It 
is not EPA's role, right or responsibility.
    The comments go on and on, Mr. Chairman. There is a 
significant workload associated with the proposed regulations. 
The magnitude of the task is formidable. Given the estimates of 
the total maximum daily load workload and assuming that the 
states and EPA will be able to take advantage of the lessons we 
have learned, economics of scale and delisting inappropriate 
waters would have proceeded, EPA would still have to approve 
one TMDL each day in the next 15-years to meet the 40,000 that 
is currently projected by EPA.
    There is no way, Mr. Chairman, that the states can do this 
job, not as it is currently outlined. There is not the money 
the time or the current staff resources. We need at least a 
tripling, even with the funding increases that were outlined by 
the Administrator, at least a tripling of the existing 
resources.
    The states are being set up to fail in this context, Mr. 
Chairman, and that is very troubling to the majority of us.
    [The prepared statement of Ms. Savage can be found in the 
appendix on page 100.]
    The Chairman. Thank you very much, Ms. Savage.
    Mr. Adler?

   STATEMENT OF ROBERT ADLER, PROFESSOR, UNIVERSITY OF UTAH, 
               COLLEGE OF LAW, SALT LAKE CITY, UT

    Mr. Adler. Thank you, Mr. Chairman, and I appreciate the 
opportunity to be here. I do want to clarify that while the 
Clean Water Network asked me to testify today, I do not 
represent the Clean Water Network, which is a very large and 
diverse coalition of organizations.
    I am an individual who has been involved in and interested 
in the effective implementation of the Clean Water Act for a 
long time and I was a member of the FACA Committee on TMDLs. I 
am also a participant in the ongoing study being conducted by 
the National Academy of Public Administration for Congress of 
innovations in environmental programs designed to make them 
more effective and cost-effective, with a focus on watershed 
programs, among others.
    I want to begin by saying that there is no doubt, as 
Senator Harkin mentioned earlier, that the proposed regulations 
will change the manner in which farmers and the forestry 
industry must address their environmental impacts. Where I 
disagree with most of the other witnesses is that I do not 
necessarily think that the net effect of the proposed 
regulations will be the detriment of those sectors of the 
economy. In fact, I believe that by increasing the efficiency 
with which both public and private resources are dedicated to 
agricultural and silvicultural pollution, the proposed changes 
have the potential to benefit both the environment and the 
affected industries.
    I also believe that they have the potential to help this 
committee's programs by ensuring that the dollars that are 
spent under the auspices of the various agricultural assistance 
programs are again conducted in a smarter, more cost-effective 
way.
    But I want to spend a few minutes talking about the impact 
of U.S. agriculture on water quality and aquatic ecosystem 
health, facts that have been known to this body for a long 
time.
    The 1972 Senate committee report said that agricultural 
pollutants are major contributors to the Nation's water 
pollution problem and that the waters of the Nation cannot be 
restored until this very complex and difficult problem of 
nonpoint sources is addressed, findings that have been 
confirmed in study after study, data produced not by EPA but by 
the states themselves.
    EPA's 1991 report on nonpoint source pollution, assessing 
the information provided by the states, found that agricultural 
run-off impaired or threatened more than 100,000 assessed 
river-miles and more than 2-million acres of lakes. Logging 
impaired more than 15,000 assessed miles of rivers nationally, 
this based on a database which only looks at approximately one-
fifth of the Nation's waters.
    Similar results have been produced year after year and as 
recently as the latest EPA national water quality assessment, 
which continued to identify agriculture as the number one cause 
of impairments of the Nation's lakes and rivers and the fifth 
leading cause of pollution of estuaries.
    Now, the response from the agricultural community, from the 
states, from the agricultural agencies is that significant 
efforts have been spent over the past 30-years, as Mr. Johnson 
notes, over the past 75-years or so, to address these impacts. 
Millions of dollars have been spent. Thousands of BMPs have 
been implemented around the country. Serious efforts at 
education, serious voluntary programs, and I agree: all those 
programs have been operating and in many cases to good effect.
    Yet despite those programs and despite those laudable 
efforts, the data remain clear: agriculture remains the leading 
source of water pollution in the United States. So the question 
is why this paradox? Why have we spent so much money and still 
find that so many rivers and lakes are impaired by agricultural 
pollution?
    My view is that it is because those dollars and those 
programs have not been targeted as wisely and effectively as 
they could be, and that is precisely where TMDLs can be a tool 
to help and precisely why I believe that this committee and the 
agricultural community should, in fact, welcome the TMDL 
process as a way to use those resources more effectively.
    For example, cost-sharing dollars spent through the various 
farm bill programs can be targeted at watersheds identified 
through TMDLs as needing reductions in particular types of 
pollutants. Within those watersheds, TMDLs can be used to 
target the pollution sources most likely to contribute to the 
problem and most likely to be a part of the solution.
    One of the programs that I studied as part of the NAPA 
review program was the Colorado River Basin Salinity Control 
Program and I want to use that as an example. It was not 
required to use a TMDL because they are not technically in 
violation of water quality standards, but for more than 25-
years they have used the equivalent of a TMDL through a 
modeling process to calculate the total salinity load 
reductions necessary to attain and maintain water quality 
standards and to identify the particular sources of salinity 
that can be attacked most cost-effectively. Most recently, they 
have used it for a market-type competitive bidding process, 
which has approximately doubled the cost-effectiveness of 
salinity control in the basin.
    So I draw two basic two basic conclusions from my study of 
the salinity program. One is that a TMDL-type process can be 
used to target and select the most cost-effective control 
projects but does not mandate particular solutions. Second is 
that it has produced significant reductions in salinity, water 
quality standards have been met in the basin as a result and 
because of that TMDL-type process, it is one of the most 
effective nonpoint source pollution control programs in the 
country in terms of the real goal not of how many BMPs we put 
on the ground but how many waters and how many miles of water, 
in fact, attain water quality standards.
    And the same is true of the TMDL regulations, which very 
explicitly say that TMDLs in implementation plans can include 
regulations, ordinances, performance bonds, contracts, cost-
sharing agreements, MOUs, site-specific or watershed-specific 
voluntary actions or compliance audits of best management 
practices. The regulations are clear that they do not mandate 
particular results within the program.
    I would like to say a little bit about three issues that I 
understand to be of particular interest to the Committee. One 
is whether or not waters impaired by nonpoint source pollution 
should be included in the program. The bulk of remaining waters 
polluted around the country, as I said earlier, are impaired by 
nonpoint sources. Excluding nonpoint sources from the program--
not from the NPDES permitting program but from the TMDL 
program--would render that program of extremely limited value 
and, in fact, would make virtually no sense. The entire point 
of TMDLs is to look at the aggregate pollution from all sources 
within a watershed.
    It is like the SIP program in the Clean Air Act, which does 
the same thing. If you try to measure the whole but to ignore 
some of the component parts, you do not get good results. In 
fact, you get nonsensical results. It would be like trying to 
assess a corporate balance sheet by looking only at the cash 
assets of the corporation while ignoring the capital assets or 
the inventory simply because they are a bit harder to measure. 
They are harder to measure but if you do not measure them, you 
do not get the full balance sheet from the corporation.
    The second issue is implementation plans. One of the most 
clear unanimous recommendations of the FACA committee and I 
believe the most important and effective recommendation was 
that TMDLs without implementation plans are nothing more than a 
bureaucratic paper exercise. The implementation plan is what is 
going to take that load calculation and translate it to real 
water quality goals, and I think EPA would be making a very bad 
mistake to delete the implementation planning provision from 
the regulations.
    Finally, the issue of EPA's authority to designate certain 
selected silvicultural activities as point sources, which has 
received a lot of attention today. The statute defines point 
sources not in terms of the nature of the economic activity but 
the nature of the discharge, with the exception only of 
agricultural stormwater and irrigation return flows, which are 
subject to particular statutory exemptions.
    A point source quite simply is any discernible, confined 
and discrete conveyance. Federal courts have interpreted the 
term broadly. So based on the language of the statute alone, 
any silvicultural discharges through a discrete conveyance is a 
point source. Any silvicultural discharge that reaches waters 
through other means--run-off--is a nonpoint source.
    EPA, by regulation, has defined certain activities, 
silvicultural activities, as being exempt from the program. 
What EPA proposes to do now is to modify those regulatory 
exemptions under very limited circumstances where water quality 
violations occur, as identified through the TMDL process. It is 
not, as has been alleged, converting statutory nonpoint sources 
to point sources.
    So with that, I again thank the Committee for holding the 
hearing. I think the TMDL program is the best available tool to 
look at watersheds on a watershed-specific basis and in a 
comprehensive rather than a fragmented way, and I would be 
happy to answer any questions the Chairman might have.
    [The prepared statement of Mr. Adler can be found in the 
apendix on page 116.]
    The Chairman. Thank you very much, Mr. Adler.
    Mr. Barrett?

STATEMENT OF JOHN BARRETT, COTTON AND GRAIN PRODUCER, EDROY, TX

    Mr. Barrett. Thank you for inviting me, Mr. Chairman. My 
name is John Barrett and I am a cotton farmer from San Patricio 
County, Texas.
    Even though I am a farmer, I am not confused, as was 
alluded to by Secretary Glickman. I would not blame you for 
being confused, Mr. Chairman. We have heard from the Government 
witnesses that TMDLs are not really going to do anything to 
nonpoint sources. Then we hear from Mr. Adler that they are the 
best hope to control nonpoint sources.
    We in agriculture strongly believe that EPA's 
interpretation of the TMDL statute, Section 303, does not 
conform to the legislative intent expressed by Congress when 
the Federal Water Pollution Control Act was passed in 1972. We 
believe that Congress enacted Section 303(d) as a back-up 
mechanism to deal with point source discharges when technology-
based controls proved to be inadequate to maintain water 
quality standards.
    The real statute that Congress enacted to deal with 
nonpoint sources was Section 319. When 319 was passed in 1987, 
the debate in the Senate is very informative when juxtaposed 
with this current notion EPA has that Congress really somehow 
passed nonpoint controls when 303 was passed 14-years earlier 
in 1972.
    Senator Stafford. ``A new Section 319 establishes a program 
to begin the process of addressing this hitherto unregulated 
source of water degradation.''
    Senator Simpson. ``For the first time, we have included a 
provision in the Clean Water Act related to nonpoint source 
pollution that comes from farmlands, timber operations, and 
other sources of run-off which are not considered point 
sources.''
    Clearly, the senators in 1987 did not think that they had 
established a regulatory program for nonpoint sources in 1972.
    But beyond the very issues relating to statutory history 
and legislative intent, the very term ``total maximum daily 
load'' is counterintuitive to nonpoint source management. Total 
maximum daily load implies a constant and regular engineered 
and controllable environment like you can do with a valve on a 
pipe at a point source.
    Nonpoint source professionals are well aware that nonpoint 
source run-off is distinctly unpredictable and unamenable to 
control. Farmers cannot control the rain. If we could, I would 
not have had a crop drought disaster in 1996 and 1998 and then 
two floods from Hurricane Bret and Hurricane Floyd in 1999. Mr. 
Chairman, when the EPA figures out how to control the weather, 
those of us out in the real world of run-off will be able to 
comply with a total maximum daily load.
    In its zeal to redefine nonpoint source run-off as a 
discharge subject to the TMDL statute, EPA is attempting to 
drive a square peg into a round hole. The Federal Section 319 
program that Congress passed grants states the flexibility to 
develop practicable, economically feasible and incentive-driven 
approaches which are implemented as a suite of best management 
practices, or BMPs. 319 approaches are considered to be 
implemented when they are put in place. In other words, 
implementation of the BMPs is equivalent to compliance.
    The TMDL statute has a different bar. Its requirement is 
that compliance is not achieved until water quality standards 
are met. For nonpoint source run-off, this requirement raises 
the real possibility that a source will have to be eliminated 
from a watershed in the event that BMPs and modified BMPs 
ultimately prove ineffective in attaining water quality 
standards. Let me be very clear. This is the Federal Government 
telling farmers whether they can farm or not.
    Mr. Chairman, EPA has made a policy decision with which it 
cannot possibly comply. Under the approach EPA is proposing in 
the new TMDL regulations, if an EPA regional administrator 
disapproves a state-submitted TMDL and/or implementation plan, 
then EPA must impose a Federal TMDL and implementation plan on 
the state and stakeholders in the watershed within 30-days.
    Mr. Chairman, this must be a joke. EPA cannot even answer 
their mail in 30-days, let alone develop a TMDL and 
implementation plan. Even worse, the Federal implementation 
plan equals Federal zoning and Federal land use planning. 
Cities can zone, some counties can zone, states can do it 
within limits, but the last thing most of us heard is that the 
Federal Government needs unambiguous statutory authority to do 
so. By this I mean Congress passing a law and not the 
Administrator of the EPA passing a regulation.
    Finally, I recently heard a senior EPA official tell a 
group that this program will have a multi-billion dollar 
impact, and I agree. However, EPA is officially claiming only 
$25 million a year on states and no costs on the private 
sector. I have even heard the Assistant Administrator for 
Water, Mr. Fox, tell a subcommittee of the House that EPA would 
never regulate nonpoint sources through a TMDL. However, EPA 
developed a single TMDL in California which imposed $12 million 
in costs on just three farmers.
    Mr. Chairman, I want to let Senator Chafee's comments when 
the 319 program was enacted close for me. ``The primary role of 
the Federal Government in the nonpoint program is to provide 
financial assistance to the states, which are given the lead in 
developing their own programs. It is not Big Brother from 
Washington telling them how to do this. The states do this. We 
give them the money to help them. We do not mandate it. Farmers 
are not required to seek permission from the Federal Government 
to carry out their farming practices.''
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Barrett can be found in the 
appendix on page 143.]
    The Chairman. Thank you very much, Mr. Barrett.
    I will mention that a statement has been submitted by 
Senator Coverdell and we will put that in the record with the 
statements from other senators.
    Let me begin the questioning because I believe my question 
really has been formulated by all you have said and sort of an 
understanding of where this may go. There is clearly a 
difference of opinion with the administration panel and this 
one on whether Congress really ought to enact something that is 
more comprehensive or hits the problem of the TMDL, as opposed 
to this development coming through regulation. And maybe that 
is so and maybe that is not.
    Well, one of the reasons for this hearing is that the 
recommendations by Administrator Browner have set off enormous 
controversies all over the country. As you mentioned, Ms. 
Savage, you are unable to produce a director because they are 
all testifying at state legislatures.
    Now, maybe that sense has not reached Washington yet, 
although Senator Lincoln has been talking about the massive 
participation in her hearings, indicating quite a bit of 
grassroots interest. That does not define the issue simply 
because people are outraged or sad or concerned, but it does 
indicate that this is not a settled situation and the law of 
the land. We are continuing to work our way through it.
    Now, as I listened to Ms. Browner this morning, she 
mentioned, for instance, the Great Lakes and the Chesapeake Bay 
as very large issues for our country and the thought that a 
total management of these situations is very complex. Her 
feeling was that the Great Lakes have been turned around, not 
that the problem has been solved, and maybe the same for the 
Chesapeake Bay. Most Americans probably recognize that, that 
perhaps we are one Nation and we take a look at major problems 
of this sort and this is very difficult.
    Now, moving from these massive waterways then into 
thousands of streams and rivers and so forth, of course, is 
another problem, and here the rights of landowners, people who 
are doing business, the Federal system itself, the rights of 
states or however they fit into the Federal Government may make 
this a lot more difficult.
    So I sort of understand where Ms. Browner is coming from, 
in a way. Obviously there must be some sense of frustration 
that the TMDL program does not quite work, as it stands. And I 
think Mr. Adler in his testimony was very helpful as a 
proponent of TMDL, without going into an endorsement of Ms. 
Browner's proposal or what Secretary Glickman had to say, but 
that it is a comprehensive reduction and to have comprehensive 
reduction, you take a look at where it is all coming from and 
how you might make something of it.
    Now, we are dealing, however, with law in which it appears 
that there is dispute over the point source or the nonpoint 
source and really what is provided, how much of this you can 
do, how far you stretch it--I think at least this is in 
contention. And it could very well be that by the time we 
complete this issue, Senator Lincoln has offered a bill but 
other senators are poised to offer all sorts of legislation 
which, in fact, may finally clarify this. We may have a 
different Clean Water Act by the time we are concluded with all 
legislation.
    What I think I sense is in a common sense way, Ms. Browner 
hears this and has tried to work through, after the public 
hearings and with Secretary Glickman and with others, some 
reasonable rules of the road that will be least offensive to as 
many parties as possible, try to mitigate some of the anxiety. 
Certainly that was true in her comments about silviculture 
today, that not many people are going to be affected by this, 
but some, and it is not really clear altogether the criteria, I 
suppose, except that Mr. Kraft said there are some bad actors 
out there. And indeed there are and the common sense of the 
American people has seen some of this from time to time and is 
outraged and wants somebody to do something about it.
    Now given all of this, are we on the right track? Mr. Adler 
believes that we are with regard to the TMDL comprehensive 
reduction idea to begin with and if we are, what sort of 
legislative changes are going to be required? Or can this occur 
through interpretation of the legislation, the major acts that 
we have here? What sort of responsibility should this 
committee, should the Senate undertake, given the whole lay-out 
of the dilemma we have heard this morning?
    Mr. Johnson, do you have an idea about this?
    Mr. Johnson. Yes. First of all, I think there are some--and 
I tried to articulate them in my written testimony--there are 
two or three issues that I think need to be dealt with before 
we go forward with whatever plan we have.
    One is to get a better understanding of water monitoring. 
We do not have a national effort on water monitoring. From what 
I know, EPA does not have that, so each state is doing it 
differently. Some states are not doing it at all. I seriously 
question the whole issue of monitoring in interstate waters. As 
you know, when we settled this land we laid a grid across it 
and we are feeling sorry for doing that even today because it 
does not fit nature.
    Well, this program, the way we are laying it out, is sort 
of a second grid. We are not escaping it; we are getting more 
into it.
    So I think----
    The Chairman. To back up on that for a minute, now you are 
saying, just for the sake of all of the audience, that water 
monitoring differs markedly from state to state. What do you 
mean by that? The measurements?
    Mr. Johnson. The amount that we do, the mandates. In fact, 
our 303(d) list is, in most states, dependent on the amount of 
monitoring that we have done. Iowa has done very little until 
this last year when we really got into it. I believe Kansas has 
done a very good job, from my understanding of it. They have 
1,500- or 1,600-waters on their list; we have 159. It is not 
because theirs is more polluted than ours, I do not believe, 
but we have very uneven monitoring across the country.
    The Chairman. Well, how could you tell what the problem is 
without there being some monitoring?
    Mr. Johnson. That is a very good point. So you have that; 
then you have an assessment of it. You have a different 
approach to setting the standards across the country. I think 
that these are basic, good, basic science questions that we 
really need to get a better handle on.
    I do not believe that--I am not here speaking against the 
idea of targeting, as Mr. Adler has said, and the idea of doing 
a budget of pollutants in impaired waters. I think that you 
have to do that if we are going to really use our resources 
wisely. But we are starting each state at such different levels 
and nobody has blown a whistle and called time out and said, 
``Let's get this right across the country and then let's go 
forward.'' There is a real need for that, I believe.
    The U.S. Geological Survey is perhaps a lead agency in 
monitoring and I would urge you to take a look at perhaps 
giving them additional resources and more responsibilities in 
this role, particularly in monitoring.
    The Chairman. Maybe this is not analogous but in the Clean 
Air Act there seems to be somewhat more uniformity in 
monitoring from the nonattainment cities to the attainment or 
what have you, essentially the same rules of the game for 
Chicago or Los Angeles or Indianapolis or what have you.
    Mr. Johnson. Well, others could maybe comment more on this; 
they may know the issue better than I. But I would guess that 
if Iowa wanted to quit monitoring entirely--and we do not; we 
want to do more--we could just do that and there would be no 
impaired list except what would be imposed upon us, I suppose. 
We would lose some 106 money, perhaps.
    We have got to get a better handle, I think, and some 
better standards nationwide on monitoring and a better 
understanding of the science of what it tells us, as well, 
especially with nonpoint.
    The Chairman. Are you saying if Iowa stopped monitoring, 
which you are not going to do but if you just stopped it, then 
the TMDL does not work, or how does it work if you have no 
monitoring?
    Mr. Johnson. I suppose a drive-by look. In fact, we are 
dealing with a list right now that is not based on real good 
science but at least it is a start.
    I think a lot of the frustration we all have with TMDL 
right now is that suddenly we are really cranking it up and it 
is being driven by litigation and I do not fault that, by the 
way. I think sometimes to get us off of dead center, somebody 
has to force it, and that is what is happening.
    But we are developing TMDLs now based on a list that we 
feel is very, very weak. It is not based on good monitoring. It 
is based on a fisheries person driving by a shallow water, for 
example, and saying, ``Gee, there is too much algae there.''
    So there are certainly good programs in the country. I 
would have to admit that ours is not, because of our past 
history, but we are catching up.
    The Chairman. Well, that is an important point because all 
of us say on the one hand, all this is a problem but, on the 
other hand, as you say, TMDLs are being driven by litigation. 
People say this is outrageous and what is going to be done 
about it? Now, the fact that there is no monitoring, no plan, 
no one doing anything does not really assuage the public grief.
    For example, the White River running through Indianapolis, 
Indiana, source of enormous outrage presently because tens of 
thousands of fish have died and continue to be dying. The 
governor devotes much of the State of the State address trying 
to talk about the fish dying in White River.
    Now the fact is that I am not certain the governor has any 
plan for this, although many people say they are still looking 
for the source of the problem, but people do get outraged in 
America. They are very concerned about the environment and 
clean air and clean water are uppermost.
    So balanced against our thoughts today about the Federal 
Government overreaching, really the lack of monitoring or the 
whole matrix that might be required to get there, is a public 
demand for this and people who go after it have a lot of 
political support, in addition to those who are saying, ``Hold 
on now a moment,'' what Ms. Browner was saying today, a lot of 
support, too, for holding on, walking around this.
    Ms. Savage, you talk to these people every day in your 
capacity who are out there on the firing line. What is the 
balance between this? How do we meet the lawsuits, the public 
outrage, the demands for standards that may or may not have 
been established very well and may be extraordinarily different 
really, state by state? What advice do you have not only to Ms. 
Browner or Secretary Glickman but to the Congress, to this 
committee to begin working on this?
    Ms. Savage. Let me address your first point, Senator, that 
the public is outraged, and rightfully so, in many ways. When 
Mr. Ruckelshaus came to the Agency in 1971 he made some very 
clear--I remember seeing him now--very clear directions to the 
EPA and to the states, specifically we were to focus on what 
was called point sources in two areas.
    One was the construction of wastewater treatment 
facilities, and $5 billion a year was going to build sewage 
treatment plants. And the other was the bad actors in the 
industrial sector. The intent was to move to a permitting 
system for all point sources of discharges.
    The 208-program, which was the original precursor to the 
nonpoint 319-money, was a planning exercise and literally 
ignored by many in the Agency. Billions of dollars went into 
cleaning up point sources. It is taking us 30-years to do that 
and for the most part, we are fairly comfortable with the 
successes achieved in the point source arena.
    On the other hand, it is like the onion. The more you clean 
up and the more layers of the onion that you discover, the more 
you understand how difficult this process is. Most of us 
thought when you clean up the raw sewage in the streams and you 
get those industries under control, voila, your water is 
cleaner. Well, that has not necessarily been the case.
    On the other hand, as Ms. Browner said, there are all these 
standards that people are not meeting. That is assuming that 
the standards are the same as they were in 1972; they are not. 
It seems that every time we attain standards, then we raise the 
bar and, of course, we are not going to be in consistent 
compliance with the standards because we are always learning 
more and changing them.
    I would not give any advice to Ms. Browner or Mr. Glickman. 
I am just glad I am not in their shoes, to be perfectly honest. 
These are very, very tough issues and TMDLs are very, very 
important. I think that because of the suits, as Paul has said, 
there is a new energy. About 10-years ago we were all saying 
clean water is a boring program and it is not very sexy. Well, 
it is pretty sexy now, and TMDLs has been in the middle of 
that, but TMDL's aew not the whole program. It is a way to do 
the water budget, as Ms. Browner indicated. But the budgeteers 
do not enforce; they do not regulate; they develop the budget, 
and that is what we need to be doing here.
    With regard to the implementation plan, it is not that we 
do not think nonpoint sources are important; they are; they are 
critical. Our association came up with the first national 
analysis of nonpoint sources back in 1985 and at that time we 
said it was 50-percent of the remaining problems. State 
administrators cannot say it is 50-percent of the problem and 
say, ``No problem with nonpoint sources.'' That is 
inconsistent. But the way we go about implementation and the 
time frames that we go about cleaning the program or getting to 
that end point of clean water is what is under debate. Whether 
EPA has the statutory authority is under debate.
    Implementation plans--we feel very strongly, as Bob does 
and as Chuck does and as Carol does, that implementation plans 
need to be part of this. The question is do they need to be 
submitted and approved by EPA? We do not think so. Perhaps an 
outline of what the implementation plan will include--we have 
discussed this with the agency specifically--an outline of what 
that implementation plan would hold and then, after the TMDL is 
approved, to go back with your public and develop the 
implementation plan using existing authorities. We are very 
comfortable with that approach and EPA seems to be at least 
willing to discuss it.
    We want to delete the threatened waters category, because 
there is just no way to deal with this. Every water in the 
United States is threatened by something. But when we put 
threatened waters in this regulation, then you multiply 40,000 
number--totally beyond our belief. EPA cannot expect that. So 
if you delete the threatened waters category, it might be 
doable in some regard.
    The offset provisions are very troubling. Again 
philosophically, we agree with the concept. If you are going to 
pollute a waterway and there is a way to get 1.5 out, then you 
should do that, but how do you do it? You know, 
philosophically, it makes some sense but most folks in the 
field do not know how to make that happen.
    We need a very clear delisting process. As Paul said, some 
of the states' lists were just developed by EPA, by drive-bys. 
That is inadequate. That is inappropriate, and a lot of the 
listings were done to get 319-money. They did not think much 
about implementation and enforcement associated with TMDL's. 
Those lists need to be cleaned up. And we need a very clear 
delisting process to do that. I could not agree more with Paul 
on the monitoring. The monitoring is not there for States to do 
what they need to do in 303(d).
    We come before you year after year and argue for money for 
the monitoring program, try to tell you what we have done in 
30-years of clean water and what is the first thing that 
happens? Our monitoring money is cut. USGS is cut. That makes 
no sense. If Congress and the public want accurate data, we 
need to ask the appropriators to make sure there is money and 
appropriate strategies for monitoring.
    And lastly, we need to integrate our 303(d), the TMDL 
program, with our 319 nonpoint source program and our 305(b), 
which is our reporting program. We need to report to you on a 
regular basis what is going on in these programs. They should 
not be separate. We should coordinate them into a comprehensive 
approach that, in fact, does what we are asking--a budget that 
is a plan and then report to Congress on how we are doing. 
Fifteen years is not going to do it.
    The Chairman. Well, that is a good list of very sensible 
suggestions. Have these all been made to Ms. Browner and her 
associates at some point? I presume----
    Ms. Savage. Oh, yes, Sir.
    The Chairman. So you are reciting really on the basis of 
having done this before.
    Ms. Savage. Well, as Mr. Kraft said, there were 32,000 
comments to EPA, of which I understand 15,000 were from the 
forestry industry and the remaining were across the board, very 
substantive for the most part, and I think you will find that 
the comments that I have outlined here are reflected in a large 
majority of those comments.
    The Chairman. Mr. Kraft, you commented in your testimony 
that the legal basis is not here or not quite here for much of 
what was being suggested, and you have heard the comments of 
others--Mr. Adler, who believes that the TMDL program, at least 
in general, may be a good way to proceed, that we are not able 
to monitor what we are doing now, but in part, that is because, 
as Ms. Savage so kindly mentions, money is not often 
appropriated and that, I suppose, does not happen totally by 
chance. A lot of people do not want to monitor these things in 
life. There is resistance to monitoring dirty air over cities 
from time to time but finally we do this and report it and it 
has ramifications that are difficult politically. When you 
begin to get all this data it is good for social scientists but 
sometimes not for the practitioners who are out there.
    What comments do you have, Mr. Kraft, having listened to 
all this conversation at this point, that would clarify your 
position or where we ought to go?
    Mr. Kraft. There are a whole host of things, I think, in 
your question. I do not think, on your first point about the 
lack of authority, I think the legislative history and EPA's 
own interpretation of the statute consistently over a long 
period of time, I think, makes it pretty clear that there is 
not authority in the current statute for what is being 
proposed.
    As to the second part of your question about TMDLs perhaps 
being a good thing and being in the statute, I think it is 
clear, and no one really disagrees with this, that there is a 
requirement to do a TMDL budget for impaired watershed and it 
is clear the states do not have the money to do it on the time 
line they are being ordered by the courts. And I think there 
probably is some benefit to having a budget.
    The question really comes down to then what is the way that 
you take that budget and translate it into something that is 
workable for the vast array of nonpoint source activities?
    I think for our company we are strong believers in adaptive 
management. We do that in our own plans, our habitat 
conservation plans, and I think that kind of approach to 319 is 
what is needed here.
    I think rather than trying to regulate through permits 
things that really cannot be done, the way you do it is through 
more money for monitoring, and we definitely need that, and 
then take a look at your BMPs and are they doing what you think 
they are supposed to be doing? Get some scientific data that 
shows whether those BMPs are effective or not.
    We need, rather than this regulation, I think what we need 
is a study to find out what is the problem out there with 
silviculture, if any? Is it really as big an issue as some 
would have you believe? I happen to think that that is not the 
case but perhaps we should put off a massive change in 
regulation until we can really understand what the problem is.
    But I do think that even if there is a problem out there 
and we find out what it is with better data, the way you 
approach that is through best management practices because that 
will lead to better water quality. And the best example I can 
give is our own habitat conservation plan, which is, in 
essence, a collective set of best management practices. It 
includes putting buffers around streams, repairing roads that 
were not built up to modern standards. It means grazing best 
management practices, fencing off cattle from streams where 
that is needed.
    It is a whole host of things that when you think about and 
work it, once you set some guidelines out there for resource 
managers, you will be impressed, I think, with the dedication 
that people who work the land, who know the land, they want to 
protect these resources and they will.
    So I think rather than having to get into a permitting of 
every single thing, we can create, through an adaptive 
management process, better BMPs.
    The Chairman. As you know, most of the protest of the EPA 
idea come from the silviculture area, from forestry. Trying to 
think through, and you are someone who knows about this, why is 
silviculture likely to come under fire at any point? If you 
think of lots of small plots with trees on them, it is hard to 
figure that, but I gather when Ms. Browner was talking about 
the bad actors, there are very large lumbering interests who 
impact upon streams and waterways in various ways, foul up the 
water in some fashion.
    Now, what is to be done about this where there seem to be 
outrageous situations, and what does the industry do about it 
now?
    Mr. Kraft. I think there are a couple of answers to that. I 
would think you would find among the vast majority of our 
members in AP&PA that they are exactly the opposite. They are 
responsible stewards of the land.
    One of the things that the industry has done is, I think, 
have a code of conduct that they have implemented through the 
Sustainable Forestry Initiative Program, a commitment to clean 
water. I think you see many of the large timber companies 
around the country doing habitat conservation plans.
    So I think there is a lot going on already under the 
voluntary programs that we have to protect clean water.
    The Chairman. Well, what if somebody in the far west sees a 
stream or river and they believe that things are really being 
fouled up by somebody in the lumber or timber industry and they 
file suit and say somebody has to stop all this? Isn't this a 
part of the reason we are having the argument as Ms. Browner 
comes forward with this?
    Mr. Kraft. Mr. Chairman, I would say that the states are 
very active in enforcing those standards now. If we were to 
cause a problem on our land, if we violated the best management 
practices or the streamside management zone and caused 
pollution in a stream, we would be called into court 
immediately. I think there is ample enforcement authority under 
the current act and the states and EPA have that enforcement 
authority today.
    The Chairman. Now Mr. Barrett, from the standpoint of the 
farmers, it does not matter whether we are talking about EPA 
today; whenever we talk about EPA, there are problems. In fact, 
I think some have said sometimes we have price problems and 
those are very severe. the Committee has been talking about 
that all the time. But problems with EPA supersede that almost 
every time in terms of getting a turn-out of people.
    Now in this particular area, whether farmers are exercised 
or not, I am trying to gather your view as to how those views 
fit into a total management plan for a waterway or lakes and 
streams and what have you. In other words, really most of the 
protests on this, as I stated, I think, accurate, have come 
from people in forestry, although there have been long-running 
arguments with dirt farmers and other people who are involved 
in agriculture with regard to EPA. But on this specific 
argument today, could you restate what the objections are as 
you see it from farmers other than foresters?
    Mr. Barrett. Well, Mr. Chairman, with all the good work you 
do here on the Committee to try to keep us in business, you 
talked earlier about the crop insurance mark-up and for us to 
have the most important asset we own, which is our land, 
threatened by a Federal regulatory take-over is something that 
really has not sunk in on the greater agriculture community out 
there yet. I do not think the pendulum has swung to the degree 
it has with the silviculture folks, but that is going to 
change. And that is why we are trying to deal with it as 
proactively as possible down at the county level to try to get 
the real row crop farmers involved in the TMDL process.
    The largest issue I think that we have to get across to 
policymakers is that when you deal with land management 
practices like BMPs, and that is what we have with the help of 
NRCS to manage our nonpoint source run-off, we can have an 
effective program that leads to water quality improvements over 
time.
    But when you put BMPs into a water quality-based program, 
like the TMDL program, just the mere BMP by itself is not 
enough. You have to ratchet your BMPs without regard to whether 
or not they are practicable or feasible or whether or not you 
are making any money.
    The BMP might be you take the south 100-acres out of 
production and plant grass on it. That is not something that 
American agriculture is going to be able to comply with. That 
is why my testimony to you is that in order to, in a 
cooperative way for us to move forward with the states and 
improve water quality, we need to work with the BMP program 
that you in Congress passed for us, Section 319, along with all 
of our other partners--the NRCS and USDA--and actually get 
something done on the ground.
    I think that is the real thing that needs to be changed. We 
in agriculture need to take back Section 319 from EPA and make 
it into an action-oriented program that improves rural nonpoint 
source water quality, rather than what it basically is now, 
which is just a process program where they go around counting 
septic tanks and such things as that. That is probably the 
number one thing that we could do to really make a difference 
out there.
    And I agree with all the other statements about monitoring. 
The drive-by monitoring problem that we have in the TMDL 
business right now is horrendous. The state of Idaho ended up 
with 962 drive-by monitored waters on its list. The state of 
Oklahoma--I have a paper trail on that one. In 1992 the state 
of Oklahoma turned in a 303-list with about 20-waters on it. 
EPA made them put on 80-nonpoint source only waters that were 
just potentially threatened. They were on another list 
somewhere but nobody knew why they were on the list. Then, 8-
years later, the state was asking EPA to take them off the list 
and they said, ``Well, even if you had no data to put them on 
in the first place, you cannot take them off unless you have 
data.''
    So in a nutshell, Mr. Chairman, we need to have better 
science behind this process and we need to put BMPs into a 
process where they can be allowed to work.
    The Chairman. I think you have emphasized correctly what is 
a fear, at least, of many farmers of the arbitrary aspects of 
this or that a good part of a farm might be sacrificed for the 
greater good. There is some possibility always hopefully in our 
courts of law for due process and working out before you are 
bankrupted arbitrarily but a good number of farmers feel they 
have been dealt with in this way. So it is timely that we hear 
that again because it is a part of the argument.
    Mr. Adler, your testimony has been characterized by me so 
many times, it is only fair that you have a chance at least to 
make certain that it remains. But having heard what you have 
heard, do you have a first comment?
    Mr. Adler. I actually appreciate your characterization of 
my testimony, which I think was fairly accurate.
    But I do want to respond to some of the things that have 
been said. First, your opening question, which is whether or 
not this committee or the Congress as a whole needs to take 
action on the statute, and I do not think you do. I think that 
EPA is well within its legal authority within the regulations.
    There are some legal issues at the margins here that I am 
sure are going to be litigated, but that is true of every 
single regulation that EPA has ever promulgated and undoubtedly 
every regulation that it will promulgate in the future, and 
that is the role of the courts to decide that.
    I do agree that Congress should help, can help by 
increasing dollars for monitoring and implementation of the 
TMDL program. You are used to hearing that. ``Don't do anything 
but send me more money'' is, I think, the message, but I think 
it is true. And the FACA committee was also unanimous in its 
recommendation for more monitoring and better monitoring.
    But in response to John Barrett's concerns, what we need is 
good science, not perfect science, and Congress acknowledged 
that in 1972 when it said that TMDLs ought to be set with a 
margin of safety, taking into account seasonal variations and 
the uncertainty inherent in the process. If we wait for perfect 
science, I would submit that the next generation of all of us 
will be in this room in 30-years talking about the very same 
issues. We need to act on good science but the best available 
science and to move forward.
    I think it is important to take an historical perspective 
here because there is a bit of a misimpression that EPA all of 
a sudden launched this TMDL missile, and that is not what 
happened at all. Congress adopted the TMDL program in 1972 and 
the problem is that it was never implemented except in the 
breach. What catalyzed the activities over the past several 
years was a rash of citizen suits around the country in which 
groups complained that this legitimate and useful program had 
never been implemented and the courts, by and large, agreed. In 
fact, many of the courts expressed some shock at the slow pace 
or lack of pace with which this program had been implemented.
    What EPA tried to do through the FACA committee and its 
rule-making process was to try to make some sense of the 
program and to try to make it workable. As just one example, we 
had courts saying that states ought to write their TMDLs in 5-
years and the FACA committee recommendation was to move that to 
15-years and I would note that there were four state 
representatives on the Committee who agreed with that 
representation or that recommendation.
    What EPA has done I think is the reasonable conservative 
middle ground. If Congress were to act, it would consider two 
other courses. One is to maintain the status quo but to get rid 
of the TMDL program, and I think we all agree that the status 
quo has not worked. Congress can throw more money at the 
nonpoint source and farm bill programs, but you legitimately do 
not like to simply throw money at a problem without knowing 
that the money is being spent wisely.
    The other course on the other side is to regulate nonpoint 
sources and to treat them like we do point sources. There may 
be a day that comes where we will decide that we have to do 
that but in the meantime, the TMDL process is the reasonable 
middle ground and I think we ought to give it a shot.
    The Chairman. Is there any further comment from the 
panelists?
    Ms. Savage. Mr. Chairman, I would like to add to that. Is 
there a role for Congress? I think there is. There is always a 
role for Congress in the statutes that they pass. And it may 
well be time for us to have a regulatory nonpoint source 
program, an enforceable program that might include 
acknowledgment of the BMPs and the good actors that are out 
there doing it right and that are moving forward. We at ASIWPCA 
do not want to interfer with that or undermining their efforts. 
But, as Ms. Browner said, there are bad actors out there and 
maybe it is time that we say look, you have X amount of time to 
do it right and if you are a habitual wrong doer, then we ought 
to have something that is more enforceable and puts you on par 
with a point source that is not doing what it is supposed to be 
doing.
    So I think in that, Bob and I agree. On the other hand, to 
say that there are only two options--status quo or go with 
these regulations--I do not think that that is accurate. We 
could modify these regulations based the comments and there 
have been, as we said, 32,000 comments. EPA has more than its 
hand full in going through all of these recommendations. There 
are many, many good comments. We can modify these regulations 
and get into the debate on nonpoint sources here in the 
Congress where it needs to be.
    The Chairman. Well, I thank all of you for your testimony 
and likewise for being so forthcoming in your responses to the 
chair and to each other.
    The hearing is adjourned.
    [Whereupon, at 12:01 p.m., the Committee adjourned.]

                                
      
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                            A P P E N D I X

                           February 23, 2000

      
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                   DOCUMENTS SUBMITTED FOR THE RECORD

                           February 23, 2000

      
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             QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD

                           February 23, 2000

      
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