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[Senate Hearing 106-590]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-590

                         CLEAN WATER ACT ISSUES

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   ON

  S. 188, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO 
  AUTHORIZE THE USE OF STATE REVOLVING LOAN FUNDS FOR CONSTRUCTION OF 
              WATER CONSERVATION AND QUALITY IMPROVEMENTS

  S. 669, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO 
    ENSURE COMPLIANCE BY FEDERAL FACILITIES WITH POLLUTION CONTROL 
                             REQUIREMENTS.

  S. 1706, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO 
EXCLUDE FROM STORMWATER REGULATION CERTAIN AREAS AND ACTIVITIES, AND TO 
  IMPROVE THE REGULATION AND LIMIT THE LIABILITY OF LOCAL GOVERNMENTS 
  CONCERNING CO-PERMITTING AND THE IMPLEMENTATION OF CONTROL MEASURES

                               __________

                            OCTOBER 13, 1999

                               __________

  Printed for the use of the Committee on Environment and Public Works

_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       one hundred sixth congress
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma            FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California
ROBERT F. BENNETT, Utah              RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director

                                  (ii)

  
                            C O N T E N T S

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                                                                   Page

                            OCTOBER 13, 1999
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...    48
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     1
    Letter, National Association of Attorneys General............    12
Hutchison, Hon. Kay Bailey, U.S. Senator from the State of Texas.    43
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     2
Voinovich, Hon. George V., U.S. Senator from the State of Ohio...     6
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........    32

                               WITNESSES

Burns, Hon. Conrad, U.S. Senator from the State of Montana.......     3
    Prepared statement...........................................    49
DeGrazia, Bruce, Deputy Assistant Under Secretary of Defense for 
  Environmental Quality, Department of Defense...................    10
    Prepared statement...........................................    57
Fleischli, Steve, executive director, Santa Monica Baykeeper, on 
  behalf of the Clean Water Network..............................    35
    Prepared statement...........................................    65
Fox, J. Charles, Assistant Administrator for Water, U.S. 
  Environmental Protection Agency................................     7
    Prepared statement...........................................    51
    Responses to additional questions from Senator Wyden.........    56
Harrison, Doug, general manager and secretary, Fresno 
  Metropolitan Flood Control District, on behalf of the National 
  Association of Flood and Storm Water Management Agencies.......    33
    Prepared statement...........................................    62
Lee, Jan, executive director, Oregon Water Resources Congress....    39
    Prepared statement...........................................    69
Sweeney, Mary Rosewin, Assistant Attorney General for the State 
  of Maryland, on behalf of Attorney General J. Joseph Curran, 
  Jr. and the National Association of Attorneys General..........    37
    Prepared statement...........................................    67
Walker, Hon. Helen, county judge, Victoria County, Texas, on 
  behalf of the Texas Association of Counties and the Texas 
  Counties Storm Water Coalition.................................    31
    Prepared statement...........................................    60

                          ADDITIONAL MATERIAL

Letter, National Association of Attorneys General................    12
Statements:
    Coverdell, Hon. Paul, U.S. Senator from the State of Georgia.    50
    Sovereign Immunity and CERCLA, National Association of State 
      Attorneys General.......................................... 15-27
Texts of bills:
    S. 188, Water Conservation and Quality Incentives Act........    71
    S. 669, Federal Facilities Clean Water Compliance Act of 1999    78
    S. 1706, Water Regulation Improvement Act of 1999............    87

 
                         CLEAN WATER ACT ISSUES

                              ----------                              

                      WEDNESDAY, OCTOBER 13, 1999

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:04 a.m. in 
room 406, Senate Dirksen Building, Hon. John H. Chafee 
(chairman of the committee) presiding.
    Present: Senators Chafee, Thomas, Voinovich, Hutchison, and 
Wyden.

           OPENING STATEMENT OF HON. JOHN H. CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Good morning, everyone. I would like to 
welcome all to this committee, and thank all the witnesses for 
testifying. The purpose of today's hearing is to learn more 
about three bills that seek to amend different sections of the 
Clean Water Act.
    The Clean Water Act has been one of our most successful 
environmental laws. Many of us are familiar with the statistics 
that before the Act was passed, two-thirds of our water bodies 
in the U.S. were not suitable for fishing and swimming. Now 
after almost three decades of hard work, roughly two-thirds of 
our water bodies are fishable and swimmable.
    We have made outstanding progress under the Act, but there 
is still a lot of work to be done. EPA estimates that over the 
next 20 years, our country faces $200 billion--that is a lot of 
money--$200 billion in waste water infrastructure needs. The 
threats to our water bodies are also becoming more complicated 
and difficult.
    Our first bill is S. 188, introduced by Senators Wyden and 
Burns. Last week, we held a hearing to discuss the appropriate 
funding levels for the SRF. Today, we will discuss a proposal 
to use the SRF, that is a revolving loan fund, to finance an 
expanded list of activities.
    The SRF is currently restricted to the construction of 
publicly owned treatment works, the implementation of nonpoint 
source management programs under Section 319, and the 
development and implementation of estuary management plans 
under Section 320.
    S. 188 would broaden that list to include projects that 
result in water conservation benefits or water quality 
improvements. Loans for these projects would be available to a 
wide range of entities, including water users, associations, 
non-profit private organizations, and lending institutions.
    The second bill is S. 1706, a bill by Senator Hutchison of 
Texas, relating to storm water regulation. EPA is in the 
process of completing a rulemaking to expand the scope of the 
agency's storm water regulations.
    S. 1706 would limit the scope of EPA's rule by providing 
statutory exemptions for certain categories, including 
vegetated ditches, construction sites under five acres, and 
routine road maintenance activities.
    In addition, the bill would limit the liability of local 
governments with respect to the action of co-permittees, and 
the implementation of control measures.
    The final bill is one by Senator Coverdell, S. 669. The 
bill would waive the Federal Government's sovereign immunity 
under the Clean Water Act, and hold Federal facilities to the 
same standards of compliance as States, local government, and 
private entities.
    S. 669 would subject non-complying Federal facilities to 
the same administrative orders, penalties, and fines that are 
used against other violators.
    Senator Thomas, do you have some comments?

            OPENING STATEMENT OF HON. CRAIG THOMAS, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Thomas. Yes, sir, thank you, Mr. Chairman. I am 
glad you are having this series of committee hearings on the 
Clean Water Act. It is one of the most important things we deal 
with.
    Reviewing innovative proposals to improve water quality or 
to provide resources is increasingly important. Undoubtedly, we 
will need additional resources to do the things that we have 
set our mind to do. However, we need to continue to address the 
proposals and have oversight to ensure that we have regulations 
that are not overly burdensome to our States and local 
communities and landowners.
    Along these lines, Mr. Chairman, and for the information of 
the committee, I intend to request an extension of the comment 
period on EPA's Guidance Manual and Examples and NPDES Permit 
for Concentrated Animal Feeding. I realize that is not on this 
morning, but I want to make this point to the agency.
    I am disappointed that the Guidance Manual has been issued 
for public comment at the same time the agency is revising the 
underlying regulations. I think you have to question how 
interested parties can possibly provide comments on a guidance 
manual, when the agency is currently revising those 
regulations.
     It seems to me that the process is a little backward 
there. I hope that the members of the committee will agree.
    I am also interested in two of the bills that will be 
discussed today, S. 669, which would require Federal facilities 
to operate in compliance with pollution control requirements.
    I am chairman of the Parks Subcommittee, and we have had 
some experience with that. Local folks feel pretty put out when 
Federal facilities can do the same things they do, and get by, 
when they can not.
    Also we have S. 1706, with exclusions to the Storm Water 
Phase II regulations.
    So I think these are useful, Mr. Chairman, and I hope we 
can move forward after having the hearing.
    Senator Chafee. Thank you, Senator.
    Senator Voinovich?
    Senator Voinovich. Mr. Chairman, with your permission, I 
would like to reserve my opening comments until we give Senator 
Burns an opportunity to testify.
    Senator Chafee. Sure, and then you would like to speak 
after him?
    Senator Voinovich. Yes.
    Senator Chafee. All right, fine.
    All right, Senator Burns?
    Senator Thomas. I might want to speak after him, too, Mr. 
Chairman.
    Senator Chafee. You are on. You and Senator Wyden have 
introduced S. 188. Please proceed.

 STATEMENT OF HON. CONRAD BURNS, A UNITED STATES SENATOR FROM 
                      THE STATE OF MONTANA

    Senator Burns. Thank you, Mr. Chairman. Why do I feel like 
I have moved into the crosshairs, here?
    [Laughter.]
    Senator Voinovich. We thought you might have something else 
to do, and we are giving you a chance.
    Senator Burns. That is exactly right. Well, I thank you, 
and I thank the committee this morning.
    I want to thank you for your consideration of S. 188, the 
Water Conservation and Quality Incentives Act, which I 
introduced with my colleague from Oregon, Senator Wyden.
    The bill is designed to do a couple of things, to improve 
water supplies and water habitats, and create incentives to 
conserve our nation's water resources.
    One does not have to look around this nation very long to 
see that its most precious resource is fresh water. It is now, 
and the demand for it in future years will continue to 
increase.
    From the very first year that I moved from the Midwest to 
the West into a watershed State, I said at that time, and that 
was a long time ago, that fresh water that comes out of my 
State of Montana will be her greatest resource. That has turned 
out to be true.
    In the West, whiskey is for drinking and water is for 
fighting. It is a most precious commodity to those of us who 
live there. We are concerned not only with the quality of the 
water, but also the quantity of our water and who controls it.
    Not surprisingly, the largest group of water users there 
are farmers and ranchers. These are the people that provide the 
American people with the safest and most abundant food supply 
in the world. They need water to grow their crops and to feed 
their livestock.
    A good deal of water out West is provided through 
irrigation systems, which divert waters from reservoirs and 
from rivers, and even from aquifers. However, substantial 
quantities of water diverted for irrigation do not make it to 
the fields and ranches. A large portion of that water is lost 
due to evaporation and seepage within canals and ditches in 
which the water flows.
    Although the water is not lost, since it seeps into the 
soil and assists the overall soil moisture and also charges the 
aquifer that follows our alluvial valleys, it is not 
immediately available to the producer.
    Water supplied through irrigation systems could be 
increased through improved water conservation measures. With 
improved water delivery, less water will be wasted, resulting 
in more water remaining in our rivers and our streams and 
aquifers; in other words, increasing in-stream flow.
    Irrigation water is an economic factor in today's market. 
In most irrigation districts, farmers and ranchers pay for any 
water released to them. Any displacement or reduction of this 
water does not help that producer's financial bottom line.
    Today, when food and meat prices are low and markets are 
questionable, and in fact, we have quite a lot of stress in the 
ag community today, it is important that we provide the tools 
to these producers to make sure that they have every 
opportunity to stay in business.
    States encourage water conversation measures by recognizing 
the rights of those who conserve water. Irrigators and other 
water users who conserve water are afforded rights to use the 
water they conserve. Water supply problems are also addressed 
in some States by financial incentives, which encourage water 
users to implement cost effective water conservation measures 
consistent with State law.
    However, States are not the only ones who can create such 
incentives. The Federal Government can play a key role by 
creating incentives such as providing greater flexibility to 
the States to loan Clean Water Act funds for water conservation 
projects. Also, allowing water users to apply a portion of the 
water they save for further use encourages more water 
conservation.
    This is the approach that my colleague Senator Wyden and I 
have chosen this bill.
    Our bill will authorize the States to make Clean Water Act 
revolving fund loans available to irrigation districts. They 
can construct pipelines and develop additional water 
conservation measures.
    Any water conservation project could be structured to allow 
participating users to receive a share of the water saved 
through their conservation efforts and more efficient use, 
which they could use in accordance with State law.
    This type of an approach would create a win/win situation, 
with more water available for both the conservers and for 
rivers and streams.
    By using State SRF program funds, the loan money would be 
repaid over time, to become available in the future to fund 
other water conservation measures, to solve water quality and 
quantity problems in other areas.
    The key underlying feature of this legislation is that 
water saved under this bill would not only help the producer in 
water and cost savings, but it would also save many of the 
rivers and streams.
    For example, water conserved could be made available to 
increase the volume of water in our rivers, or in-stream flow, 
thereby facilitating fish habitat and migration routes.
    This is especially critical out West, where two fish 
species, the northwest salmon and the bull trout, are listed as 
endangered and would greatly be helped.
    To illustrate how this bill would work, I would like to 
share a real-life problem in Racetrack Creek, located in 
western Montana. It is a tributary of the Clark Fork River 
within an EPA Superfund site, due to historic damage from 
copper mining and milling.
    Racetrack Creek is a spawning ground of bull trout and it 
has had problems maintaining its water level since the turn of 
the century.
    A local watershed management group, the Upper Clark Fork 
Steering Committee, is working on this problem with a wide 
cross section of representation from the Clark's Fork River 
basin.
    The Upper Clark Fork Steering Committee and the Montana 
Department of Fish, Wildlife, and Parks are working to line 
Morrison Ditch, which diverts water for irrigation into the 
local area.
    A portion of the water rights salvaged by lining Morrison 
Ditch under this bill would be leased by the Montana Fish, 
Wildlife, and Parks from the Ditch Association to benefit the 
fishery.
    I would like to point out that this bill has broad support 
by senators on both sides of the aisle, as well as from the 
Farm Bureau and the Environmental Defense Fund. Such a diverse 
range of interests in support of this bill makes for a 
favorable consideration of this bill.
    It addresses the problem of adequate water supplies for 
agriculture producers. It addresses the problem from nonpoint 
source runoff. It creates new incentives for water users to 
conserve water. It provides the States greater flexibility to 
make loans from the Clean Water State Revolving Fund for water 
conservation projects, and does not increase the budget, since 
it recovers money provided for water conservation projects 
through loan repayments to State revolving loan funds.
    I believe S. 188 deserves our attention. If it can be 
changed to be better, we are open to those suggestions.
    I would like to thank Senator Wyden and this committee for 
showing interest in this piece of legislation. I thank the 
Chairman.
    Senator Chafee. Well, thank you very much, Senator Burns. I 
think it is an intriguing idea. I appreciate very much your 
having proposed this, you and Senator Wyden.
    Senator Voinovich, do you wish to make some comments?
    Senator Voinovich. Not in regard to Senator Burns' 
legislation.
    Senator Chafee. OK. Yes, Senator Thomas?
    Senator Thomas. My understanding, Senator, is that this 
would be discretionary, this use to the States.
    Senator Burns. That is exactly right.
    Senator Thomas. I understand it also would not affect the 
distribution among the States that were not involved?
    Senator Burns. It would not.
    Senator Thomas. Thank you, sir.
    Senator Burns. If you have any suggestions, and I know you 
and I have a common interest of that 45th parallel that 
separates us--we have some common water problems with Wyoming. 
So we appreciate your interest.
    Senator Thomas. It runs, generally, from Wyoming toward 
Montana, fortunately.
    Senator Burns. Yes.
    Senator Chafee. All right, thank you very much, Senator.
    Senator Voinovich. Mr. Chairman, could I give my statement?
    Senator Chafee. Yes.
    Senator Voinovich. Thank you.
    Senator Chafee. Go to it.

        OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, 
              U.S. SENATOR FROM THE STATE OF OHIO

    Senator Voinovich. Yes, I would like to make a couple of 
comments in regard to Senate 669, that some of these witnesses 
were going to be talking about.
    Senator Chafee. I could not quite hear you.
    Senator Voinovich. I would like to refer to Senate Bill 
669, which some of our witnesses will speaking about.
    Senator Chafee. All right.
    Senator Voinovich. I am pleased that I am a cosponsor of 
the Federal Facilities Clean Water Compliance Act. Mr. 
Chairman, this bill would ensure that the Federal Government is 
held to the same enforcement mechanism under the Clean Water 
Act as private entities, States, and localities.
    Something that is troublesome to me is that in this 
particular case, the Federal Government is not held to the same 
standards as others.
    Under current law and order for the Federal Government to 
be sued, it must first waive its sovereign immunity. If there 
is any question as to what extent the Federal Government has 
waived its sovereign immunity, courts must rule in favor of the 
Federal Government. This bill waives sovereign immunity for the 
Federal Government.
    In 1992, the U.S. Supreme Court ruled in Department of 
Energy versus Ohio that Congress had not waived Federal 
immunity for liability for civil punitive fines imposed by a 
State for past violations of the Clean Water Act. As a result 
of this ruling, States can not obtain penalties for past 
violations of the Act from Federal agencies.
    It is important to note that in almost every other 
environmental statute, Congress has waived sovereign immunity, 
and allows States to enforce State environmental laws at 
Federal facilities. This bill would make the Clean Water Act 
and State and local water pollution laws enforceable for 
Federal agencies.
    I have supported the same position in regard to Superfund, 
that Federal agencies, such as the Department of Energy, should 
be held accountable to the same clean-up standards that private 
entities and State and local governments are required to 
follow.
    All Federal agencies should be held to the same 
environmental compliance standards are everyone else. It is 
really disturbing to me that in so many Federal facilities 
around this country, Mr. Chairman, they are not held to the 
same standards.
    If a private sector was doing what the Federal Government 
has been doing around this country, people would be up in arms. 
Environmental groups would be on the steps of the Congress. I 
think that we need to have the same kind of aggressiveness with 
our Federal facilities.
    In my State, we have Piketon, where we have got some real 
problems dealing with plutonium, phenol. We have a site up in 
Marion, Ohio, where a school is probably going to ultimately 
have to be maybe moved because of a Federal dump that was 
there, and people neglected it.
    Up in the northern part of the State, there is the Toussant 
River, where the Department of Defense last year had 5,000 
pieces of ordinance on a beach, 20 percent of them, live. We do 
not seem to be concerned about this.
    But, again, if it was a private company that was involved, 
you know what would be happening. We would have every Federal 
agency down on their back like a hawk, threatening to put them 
out of business, threatening to sue them.
    I think that we need to apply the same standards to the 
Federal Government as we do everyone else in this country. That 
is why this legislation is so important.
    Senator Chafee. Well, we are going to hear from the 
Assistant Secretary of Defense on this subject. You will 
certainly have an opportunity to quiz him.
    All right, now, Mr. Fox, if you will come forward, and Mr. 
deGrazia, from the Defense Department. We will start with you, 
Mr. Fox, and go to it.

 STATEMENT OF HON. J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR 
          WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Fox. Thank you, Mr. Chairman.
    Good morning to you and members of the Committee. It is a 
pleasure to be here, again. It is my understanding I might be 
here a few times in coming weeks, too. It is good to spend some 
time with you.
    Next Monday, October 18, is the 27th anniversary of the 
enactment of the Clean Water Act. Twenty-seven years ago, the 
Potomac River was too dirty to swim in, Lake Eerie was dying, 
and the Cuyahoga River was so polluted that it burst into 
flames.
    Senator Chafee. I think that Cuyahoga River bursting into 
flames was the--I do not know what the exact word is I am 
seeking--but in any event, that was it, when the river caught 
fire. I think that really gave the incentive for the Clean 
Water Act to be enacted.
    Mr. Fox. I think that is right.
    Senator Voinovich. Mr. Chairman?
    Senator Chafee. Yes.
    Senator Voinovich. You might be interested that while I was 
Mayor of Cleveland, we suspended a police officer who, on his 
official time, was fishing in the Cuyahoga River.
    [Laughter.]
    Senator Voinovich. Things have improved.
    Mr. Fox. Well, in fact, that was my point, that enactment 
of the Clean Water Act under your leadership, Mr. Chairman, and 
members of this committee has dramatically improved the health 
of the rivers, lakes and coastal waters in this country.
    It has stopped literally billions of pounds of pollution 
from fouling our waters and doubled the number of waterways 
that are safe for fishing and swimming.
    Before commenting on the several bills before the committee 
today, I want to briefly take a moment to look a the broader 
issue of the Clean Water Act reauthorization.
    Last week, I testified before this committee on bills to 
amend the Clean Water Act SRF program, introduced by Senator 
Voinovich, and to address overflows from combined sewers.
    Today, I am testifying on bills related to storm water 
permits, expanded use of the SRF and expanded enforcement of 
Federal facilities, and additional legislative hearings that 
are planned.
    Although this Administration is pleased to provide comments 
on the specific provisions of each of these narrowly crafted 
bills, I want to encourage the committee to consider the need 
to strengthen the Clean Water Act in several critical areas 
that are not now the subject of proposed legislation.
    For example, the Administration proposed in 1994 to call 
for strengthened authority to reduce polluted runoff, to better 
protect wetlands, and to reduce toxic pollution to improve 
compliance and enforcement.
    In addition, a recent court decision allowing the draining 
of wetlands threatens literally the loss of tens of thousands 
of acres around the country. I hope the committee will give 
attention to some of these critically needed changes in the 
Act.
    Turning to the legislation pending before the committee 
today, I will first direct my attention to bill S. 1706, 
introduced by Senator Hutchison and Senator Graham, to make 
amendments to the Storm Water Pollution Control Program 
authority under the Clean Water Act. The Administration has 
significant concerns with several provisions of the bill, and 
is opposed to the bill as drafted.
    As you recall, Congress established the Storm Water Program 
in 1987. EPA published regulations addressing discharges of 
storm water from large cities, industrial facilities, and 
construction sites in 1990. We will shortly publish a second 
round of regulations called the Phase II Storm Water Program, 
addressing smaller cities and construction sites.
    As we developed the Phase II Program, we solicited input 
from stakeholders by convening a Federal Advisory Committee, 
which met 14 times. We developed three preproposal public 
drafts and received 40 to 50 sets of comments on each one.
    We also convened a SBREFA panel to solicit input from 
potentially regulated small entities. After proposal, we held 
six public hearings and received 550 comments, roughly half of 
which were in fact from the State of Texas.
    We are now in the final stages of development, and expect 
to propose the final rule on October 29, consistent with a 
court order deadline.
    We have several objections to the proposed bill, which 
would modify the Storm Water Program. First, the bill would 
provide that when a permittee relies on a second governmental 
entity to carry out storm water related actions, the permittee 
is not subject to enforcement action if the second governmental 
entity does not do its job.
    Because the second governmental entity is not officially 
part of the permit, it too, is not subject to enforcement 
action. This approach would create cases where no one is 
legally responsible for storm water pollution control.
    Without effective enforcement response, compliance with 
storm water permits and control of storm water pollution will 
be significantly reduced.
    Second, the bill would also waive the requirement that a 
local government obtain a permit for storm water discharges 
from above ground vegetated ditch or a drainage way. This 
provision would substantially narrow the scope of the program 
and reduce water quality benefits.
    Above ground conveyances can carry pollutants to waters of 
the United States, as do underground storm sewers, albeit a 
slower and perhaps more controlled rate. Many of the management 
measures provided for in the Phase II Rule are equally 
appropriate for above ground and underground conveyances.
    Finally, the bill would exempt any storm water discharges 
associated with construction activity of less than five acres 
from the permit requirements of the Clean Water Act. The bill 
would undercut the existing Phase I regulations, as well as the 
construction provisions of Phase II. These construction 
activities are a significant source of water pollution in 
meeting the goals of the Clean Water Act.
    Turning to the Federal Facilities Clean Water Compliance 
Act of 1999, S. 669, I would simply say that the Administration 
supports this legislation. My colleague from the Defense 
Department will be adding more detail on that in his testimony.
    Finally, turning to S. 188, introduced by Senators Wyden 
and Burns, it would specifically authorize SRF loans for water 
conservation activities outside of municipal sewer systems for 
nonresidential water conservation, specifically, conservation 
of water used in agriculture. The bill would also make private 
organizations and individuals eligible for the loans.
    Conservation of agricultural water can have dramatic 
benefits for water quality. The Administration supports using 
SRFs to finance such projects under specific circumstances. For 
example, water conservation projects that would make more water 
available to augment flow in a water body that the State has 
identified as a priority should be eligible for SRF funding.
    As presently drafted, however, the bill would allow States 
to use SRF loans for water conservation projects with limited 
environmental benefits.
    Senator Chafee. I could not hear that last part.
    Mr. Fox. As presently drafted, the bill would allow the SRF 
loans to go to projects with limited water quality benefits. We 
would like the opportunity to work with the committee and the 
bill sponsors to better define the circumstances under which 
SRF loans could be available for these purposes.
    That concludes my prepared remarks.
    Senator Chafee. All right, Mr. Secretary, will you proceed?

   STATEMENT OF HON. BRUCE DE GRAZIA, DEPUTY ASSISTANT UNDER 
SECRETARY OF DEFENSE FOR ENVIRONMENTAL QUALITY, U.S. DEPARTMENT 
                           OF DEFENSE

    Mr. deGrazia. Thank you, Mr. Chairman.
    Good morning. My name is Bruce DeGrazia. I am the Assistant 
Deputy Under Secretary of Defense for Environmental Quality in 
the Office of the Secretary of Defense.
    I would like to thank you for the opportunity to speak 
before this committee on the proposed bill Senate 669, the 
Federal Facilities Clean Water Compliance Act of 1999.
    The Department of Defense already complies with the Clean 
Water Act. Our installations have permits, comply with 
discharge standards, and submit regular monitoring reports, 
just like any other entity subject to the Clean Water Act.
    In addition, we are subject to enforcement actions and 
compliance agreements, just like any other entity subject to 
the Clean Water Act.
    The Department has almost 1,900 clean water permits 
throughout the United States. These permits cover domestic 
waste water industrial waste water, and storm water. In fiscal 
year 2000, the Department will invest $215 million in upgrading 
and replacing waste water treatment infrastructure.
    On top of these investments, the Department spends millions 
of dollars each year, complying with the day-to-day 
requirements of these permits, operating treatment plants, 
sampling of water, repairing and maintaining of the plants, and 
submitting regular monitoring reports to the regulators.
    Our compliance record in the area of clean water is 
excellent. In 1998, the Department received only 46 enforcement 
actions. Ninety-eight percent of our almost 1,900 permits were 
in compliance.
    Still, we can do better. The military departments are 
making great strides to reduce enforcement actions to reach a 
state of full and sustained compliance.
    The Department of Defense has supported a limited expansion 
of the waiver of sovereign immunity that would subject us to 
penalties for all Clean Water Act violations for which a 
private person would be liable. Whenever possible and 
consistent with our other statutory obligations, we should be 
held to the same standards as other private or public entities.
    The proposed bill tracks closely the language used in 
recent years to amend the Resource Conservation and Recovery 
Act and the Safe Drinking Water Act to expand the waiver of 
sovereign immunity. The Administration, including the 
Department of Defense, has supported both of these efforts.
    Although the Administration supports the goals of Senate 
669, we are concerned with one of the provisions in the bill. 
This provision, in rare circumstances, could interfere with our 
ability to carry out critically important responsibilities in a 
manner protective of national security.
    The proposed bill would eliminate the Presidential 
exemption provision currently included in Section 313 of the 
Federal Water Pollution Control Act. This provision is 
carefully circumscribed, and allows the President to exercise 
his authority only in the paramount interest of the United 
States.
    Similar provisions are in the Clean Air Act, the Safe 
Drinking Water Act, the Resource Conservation and Recovery Act, 
and the Comprehensive Environmental Response Compensation and 
Liability Act. Historically, Presidents have used these 
provisions infrequently, and the standard required is difficult 
to meet.
    These exemptions are essential tools to ensure that the 
President has the flexibility he needs to act quickly and 
decisively to protect the national interests when strict 
compliance with these environmental laws could jeopardize the 
overall interests of the United States.
    I would like now to turn to the implications of the 
sovereign immunity waiver in the Comprehensive Environmental 
Response, Compensation and Liability Act.
    The Department of Defense, with the support of the 
Administration, has consistently opposed efforts to change the 
waiver of sovereign immunity in CERCLA. Given that strong 
opposition, the question arises why the Department can support 
the changes in the waiver proposed in Senate 669.
    I would like to take this opportunity to clarify before 
this committee the differences in our positions, and explain 
the rationale for opposing the waiver under CERCLA.
    The Department of Defense already complies with 
environmental laws to the same extent as private parties 
conducing a cleanup under CERCLA. We follow the procedural 
requirements of CERCLA, and comply with the substantive 
requirements of State and Federal environmental laws and 
regulations.
    CERCLA exempts all parties from many purely procedural 
requirements of other State and Federal laws, such as the 
requirement to obtain permits, so the cleanups can be 
implemented as quickly as possible.
    There already is a waiver of sovereign immunity in CERCLA, 
which we believe works very well. The current waiver encourages 
the Department of Defense and States to reach consensus on 
disputed issues at the negotiating table, rather than resorting 
to litigation.
    Also, CERCLA addresses a different type of situation than 
the other laws, where the Department supports waivers of 
sovereign immunity. The Clean Water Act is prospective and 
seeks to control or limit pollution from occurring. Waiting for 
approval of a new water permit discharge permit should not 
impact public health or the environment, because a discharge 
can not occur until the proven permit is approved.
    However, at CERCLA sites, the contamination already at the 
site can spread during the wait, with the potential for 
impacting public health and the environment, and increasing 
costs significantly.
    In summary, the Department supports most of the entire 
bill. However, we believe the bill should be amended to retain 
the President exemption provision in the present law.
    I would be happy to answer any questions from the 
committee. Thank you.
    Senator Chafee. Thank you very much, Mr. Secretary.
    I must say, I am a little bit confused here. As I 
understand what you are saying, you are opposed to changes to 
the Superfund waiver of sovereign immunity.
    Mr. deGrazia. That is correct, Senator.
    Senator Chafee. You state that the Clean Water Act is 
different from Superfund, and you say Superfund's existing 
waiver is working well. Now the people who are in charge with 
enforcing this, namely, the Attorneys General in the various 
States, do not agree with you.
    I have got a copy of a letter here that was signed by 41 
State Attorneys General that refutes the argument that DOD 
makes that changing CERCLA's sovereign immunity provision will 
result in delays and excessive costs for the Department of 
Defense. In other words, they argue that that is not so.
    I would like to make that letter part of the record.
    [The material from the State Attorneys General follows:]
    
    
    Senator Chafee. Now how come there is such a difference of 
opinion here on the consequences in the change in Superfund's 
sovereign immunity waiver?
    Mr. deGrazia. Well, Mr. Chairman, the Department of Defense 
believes that the waiver of sovereign immunity currently in 
CERCLA worked very well because it happens to encourage 
negotiation, rather than litigation.
    We believe that our paramount interest is protecting the 
health of the people and the public and the environment. If 
litigation is allowed to occur under a new waiver, under an 
expanded waiver, we believe that this could cause delays that 
could, in fact, impact the health of the public, or damage the 
environment further. We think that negotiation here, rather 
than litigation, is really the important way to go.
    Now the States may feel differently. The States have 
particular ideas of how they think a cleanup should proceed. We 
think that under the current system, the Department of Defense 
can sit down with the State regulators and work something out. 
We think that, by and large, that ultimately what we ended up 
with is something that is amenable to both parties.
    Senator Chafee. Well, I have trouble understanding how the 
Federal Government can hold private parties to certain 
standards. But, I mean, why should not the Federal Government 
be held to the same standards as private parties? You know, you 
talk about negotiations and so forth.
    Mr. deGrazia. Well, Mr. Chairman, we already must meet the 
State substances requirements through the ARAR process. We just 
believe that to impose a State's procedural process on top of 
the CERCLA scheme that we are already required to follow could 
result in delay and confusion and possible litigation, and just 
generally believe it would not contribute to the protection of 
human health and the environment.
    Senator Chafee. Well, currently, as I understand it, the 
States have no legal resource, if DOD does not conform. In 
other words, States can not seek judicial relief. They can only 
negotiate, because DOD has the final say.
    I must say, if I were in your position, I would have the 
same position you have got. You have got a pretty strong hand 
here. But I am not sure that looking at it objectively here, I 
can totally agree with you.
    Mr. Fox, you note in your testimony, you are prepared to 
work with this committee to strengthen the Clean Water Act. 
What is your top priority?
    Mr. Fox. Given the changes that I have seen around the 
country in wetlands protection programs, as a result of that 
recent court case, that would have to be tops on my list.
    We are still trying to get good data on this, Mr. Chairman. 
But as a result of this court case, we are now estimating that 
probably in excess of 30,000 acres of wetlands have been lost 
since the court ruling a little bit over a year ago.
    Basically, the effect of the court ruling is to take a 
whole range of activities that would otherwise be permitted out 
of the program, so that not only do they not get permits, we do 
not have the mitigation requirements and such.
    This is the result of the so-called Tulloch decision. That 
would have to be tops on my list of priorities. I can give you 
a list of some others.
    Senator Chafee. Yes, I must say, the Tulloch decision was a 
body blow. Where does it stand? Was it appealed, or what 
happened?
    Mr. Fox. This was an appellate court, as is my 
understanding, if my memory serves me right. The Government has 
decided at this point not to appeal it. We will be doing 
additional rulemaking, trying to limit the impact of the court 
case. But, fundamentally, we are going to need a statutory 
change to be able to protect these wetlands.
    It has to do with the way the Clean Water Act is 
structured. It regulates only the discharge of materials to 
waters of the United States, as opposed to activities that 
result in impacting waters of the United States
    The fundamental problem here is some of these wetlands are 
being drained without discharging significant amounts of 
pollutants. So we would have to start approaching this from 
regulating the activity, like draining wetlands. That is the 
fundamental challenge.
    Senator Chafee. Senator Voinovich?
    Senator Voinovich. In terms of waiver of immunity for 
CERCLA, obviously, the States Attorneys General have got a 
difference of opinion with the Department of Defense.
    I only can conclude that one of the reasons why the Defense 
Department is opposed to this is because of the cost involved 
in cleaning up these facilities throughout the country.
    I know I have had some experience recently in terms of the 
appropriations. Basically, the answer I got when we wanted some 
money to clean-up the problem we had in our State was, we can 
not give you the money for that, because we need the money for 
readiness and for other priorities of the Defense Department.
    I think that that is of real concern to all of us. We are 
all interested in readiness and doing an adequate or more than 
adequate job in that area. But I think that incumbent with that 
responsibility is the past activity of the Department of 
Defense, and the environmental problems that it has created 
throughout this country.
    It seems to me that the Department ought to go forward with 
a major initiative to do an inventory of all of these sites 
throughout the country.
    I mean, I would be interested in knowing, for example, do 
you have an inventory of the various defense facilities in this 
country, and the condition of those facilities, or are we going 
to continue to have these things popping up like we have in 
Marion, Ohio?
    Mr. deGrazia. Well, Senator, I would like to take that 
particular question, for the record, if I may.
    Senator Voinovich. Yes.
    Mr. deGrazia. But I would like to respond, if I may, to 
your comment on cost. Certainly, cost is an issue. But it is 
not the only issue with regard to the expansion of the waiver 
of sovereign immunity.
    The Department of Defense conducts cleanups by working with 
the communities to decide what the cleanup remedy should be. 
The States are part of that dialog. In fact, local communities, 
including the public, are part of our restoration advisory 
boards, at the various cleanup sites that the Defense 
Department has.
    What we would like to do is keep everyone working together. 
We believe that under the current system, this is a way by 
which everybody gets an opportunity to be heard, and we get to 
work out something that results in having everyone have a 
result that is satisfactory.
    Senator Voinovich. Well, I suspect, and I have been on this 
committee and I am new to the Senate, but I will bet you that 
the Chairman of this committee has heard that, the same 
statement, made by one business organization after another, 
saying, if we did not have this, we could work it out, and so 
on.
    The issue is, why should you be different than everyone 
else? If we are going to grant you the waiver, why should not 
we do it with the private sector? Why are you different than 
private sector people that would be sitting at the table, 
asking for the same thing that you want?
    Mr. deGrazia. Senator, unlike private partners, the 
Department of Defense is required by law to follow the CERCLA 
process at all sites, regardless of whether they are on the 
National Priorities List or not. In that regard, we are 
different, in any event.
    But you are right, Senator, in that the Department of 
Defense has a large number of cleanup sites. We are trying to 
get them cleaned up as quickly as possible. Also, many of our 
sites tend to be fairly large sites, and have a great impact on 
the community.
    What we are trying to do is, we are trying to work with a 
system that enables the community and the public to have more 
of a voice. We simply believe that if we were treated in such a 
way that we would have to deal with and have to comply with a 
number of the procedural requirements, that we would not be 
able to serve the public the way that we feel that we are 
doing.
    Senator Voinovich. I would like to ask another question to 
Mr. deGrazia and to Mr. Fox. To your knowledge, do we have an 
inventory of compliance with the Clean Water Act at Federal 
facilities in this country?
    Mr. deGrazia. Mr. Senator, every year, the Defense 
Department facilities send to the Environmental Security 
Department in the Department of Defense a list and rendition of 
all of the compliance actions that have been brought against 
the Department of the Defense. So the short answer to your 
question is, absolutely, yes.
    Mr. Fox. I would confirm that, Senator.
    Senator Voinovich. This is a list of the ones where actions 
have been brought, or an overall list of all of the facilities 
and the status of their compliance?
    Mr. deGrazia. It is both.
    Mr. Fox. Right.
    Senator Voinovich. The latter?
    Mr. deGrazia. All of the above.
    Senator Voinovich. So if I asked for a list of all of the 
Federal facilities that are under your jurisdiction in terms of 
their compliance with the Clean Water Act, you would have that 
information available?
    Mr. deGrazia. Yes, sir, and we would be happy to provide 
that to you.
    Senator Voinovich. OK, thank you.
    Senator Chafee. Are you all set?
    Senator Voinovich. Yes.
    Senator Chafee. All right, thank you very much, gentlemen.
    Mr. deGrazia. Thank you, Mr. Chairman.
    Senator Chafee. Now the next panel has the Honorable Helen 
Walker, Mr. Doug Harrison, Mr. Steve Fleischli, Ms. Sweeney, 
and Ms. Lee. If you could all come forward.
    We will take you in the order that we called them off, 
starting with the Honorable Helen Walker, County Judge, 
Victoria County, Texas. You can proceed, please.

STATEMENT OF HON. HELEN WALKER, COUNTY JUDGE, VICTORIA COUNTY, 
 TEXAS, ON BEHALF OF THE TEXAS ASSOCIATION OF COUNTIES AND THE 
              TEXAS COUNTIES STORM WATER COALITION

    Judge Walker. Thank you, Mr. Chairman and members of this 
distinguished committee for the opportunity to speak to you 
today.
    I am Helen Walker, Victoria County, Texas Judge and cochair 
of the Texas Counties Storm Water Coalition, made up of 115 
counties united due to our concern about our ability to perform 
under the EPA's proposed Storm Water Phase II rules. You each 
have written materials which supplement this statement.
    Although we are from Texas, this is not a Texas problem. 
Counties in most of your States and others will be similarly 
impacted. Phase II would regulate two types of storm water 
discharges, those from small municipal storm sewer systems and 
those from constructions activities that disturb one acre or 
more of land.
    Most of Texas' 160,000 miles of county roads, have ditches 
with grass on either side. EPA's own strategies use vegetated 
areas to improve water quality; yet, they choose to regulate 
such ditches. Those should be exempt, we feel.
    The construction activities have been broadly define to 
include linear construction; in other words, roads. If one of 
my commissioners needs to blade about a third of a mile of 
county road, gravel, or caliche, introducing no unnatural 
materials, he has got to get an EPA permit. On 160,000 miles of 
roads, gentlemen, that is a lot of permits.
    To make matters worse, the county has become both the 
regulated and the regulators. In Texas and many other States, 
we lack the authority to permit and to assess an environmental 
fee for that permit, so the entire burden of cost falls on the 
counties. We have no choice except the ad valorem tax system, 
adding to the burdens of our local taxpayers.
    San Antonio, Texas, a Phase I city, states that their cost 
was between $7 and $10 per capita, per year. That is with the 
infrastructure already in place to do the program. Texas 
counties and those of many of your States have no such 
infrastructure, so it is logical that the cost would be even 
higher.
    Both the MS4 requirements and the one acre threshold for 
construction are proposed without adequate data to show that 
they would, in fact, enhance water quality.
    Senator Hutchison has filed legislation which address many 
of our concerns. Senate bill 1706 would exclude from 
consideration as regulated MS4s the thousands of miles of 
vegetated county road ditches, which already serve as a natural 
treatment system, and should not be covered by this Act.
    Second, to eliminate permitting of construction sites less 
than five acres, in the Phase I regulation, EPA itself chose 
the five acre threshold for permitting.
    Third, it would exclude routine road maintenance from being 
considered as a construction activity.
    Fourth, it would protect the county from liability for not 
complying with regulations that require actions exceeding the 
authority vested in counties under State law. Many counties 
across the Nation do not have ordinance making or enforcement 
authority. Our choice would be, do we break State law or 
Federal law in trying to do our duties?
    Fifth, it would enhance the ability of counties to rely 
upon another governmental entity's implementation of MS4 
measures. By protecting us from liability, if the implementing 
entity fails to comply with Phase II, we are not trying to make 
no one responsible for that compliance. We are saying one or 
the other should be responsible.
    If we contract with a builder to build a building for the 
county, we receive a performance bond. Therefore, if one entity 
contracts with another and pays for that privilege, we feel 
that we should be, in effect, bonded. The entity who takes on 
that responsibility should be the responsible party.
    As a local elected official, I know better than most that 
clean water is a precious commodity. I am not only responsible 
to the 80,000-plus people in my county, but I am also telling 
you that my kids and my grandkids live in my county. I am going 
to make sure that they have clean water for the future.
    Clean water is the key to a successful community. That is 
why Congress, in its wisdom, passed the Clean Water Act. But we 
believe that the proposed rule goes well beyond the Act and 
does not truly target improving water quality. Otherwise, this 
would not be based strictly on population thresholds.
    We know that there are areas of the country that have 
severe water problems. Some of those are in Texas. We feel that 
they should be singled out.
    Senator Hutchison's bill takes a logical alternative to 
correcting the broad brush approach. We believe the 
legislation, if passed, will help local governments throughout 
the nation, and that this is an opportunity for Congress to 
make clear to EPA the intent of the Clean Water Act, and to 
further the goal of cleaning up our water.
    Texas counties are committed to clean water. Senator 
Hutchison's proposed bill serves that goal faithfully, 
addressing water quality concerns, while acknowledging the 
local legal and practical realities of county government.
    Again, thank you for this opportunity. I will be happy to 
answer questions.
    Senator Chafee. Thank you very much, Ms. Walker.
    Senator Wyden has joined us. Do you have a statement you 
would like to make at this time?

             OPENING STATEMENT OF HON. RON WYDEN, 
             U.S. SENATOR FROM THE STATE OF OREGON

    Senator Wyden. Well, Mr. Chairman, I think it would be the 
height of bad manners to just come on in now and interrupt 
this. We have been all tied up this morning on the assisted 
suicide issue, which Rhode Island physicians have been very 
involved in. I would ask that my statement be part of the 
record.
    As you know, Senator Burns and I have introduced a bill 
that has managed to bring together the Environmental Defense 
Fund and the Farm Bureau, which is a coalition that you do no 
see every single day in Washington, D.C. We are very grateful 
to have their support.
    You and your staff have been just extraordinarily kind and 
gracious to us in putting together this legislation, as has 
Senator Baucus'. I will have some questions when we get done. 
But I just want to let you know, I feel badly about my manners 
this morning.
    Senator Chafee. No, no, no, do not worry.
    Senator Wyden. I am anxious to hear the witnesses.
    Senator Chafee. OK, that is fine. Well, thank you very 
much.
    Now Mr. Doug Harrison, General Manager and Secretary, from 
the Fresco Metropolitan Flood Control District. You may 
proceed, Mr. Harrison.

  STATEMENT OF DOUG HARRISON, GENERAL MANAGER AND SECRETARY, 
 FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, ON BEHALF OF THE 
   NATIONAL ASSOCIATION OF FLOOD AND STORM WATER MANAGEMENT 
                            AGENCIES

    Mr. Harrison. Thank you, Mr. Chairman and members of the 
committee. It is my pleasure to appear on behalf of the 
National Association of Flood and Storm Water Management 
Agencies. A brief profile of our association is included in our 
written statement. My remarks will supplement that statement, 
and hopefully provide some insights.
    First, I would like to comment on Senate bill 188. NAFSMA 
supports the use of SRF on water quality related capital 
projects. We would just note that as the list of authorized 
uses of SRF increases, the amount of money needs to increase, 
as well.
    Second, as to Senate bill 669, NAFSMA supports the 
obligation of Federal agencies to comply with the same 
obligations imposed on local government. Even now, though, 
various agencies are exempting themselves from the storm water 
quality programs and from participating in their fair share of 
the local cost of the BMPs that we are required to implement.
    I would like to focus the balance of my comments on Senator 
Hutchison's bill, and would note that we appreciate the 
Senator's efforts to bring the storm water problem, as we know 
it, to the Congress.
    The bill addresses three proposals: one, to limit 
copermittee liability, which we support; second, it proposes 
protections against Federal mandates, which exceed State law 
authority. Again, NAFSMA has worked to support that concept, as 
well.
    Third, the bill proposes exclusion of certain specific 
facilities and activities. Among those is routine road 
maintenance. Again, NAFSMA agrees that the regulations need to 
be clarified to exempt nonimpact maintenance activity.
    The bill also proposes to exclude from the Storm Water 
Program construction sites less than five acres and communities 
that are served by vegetated drainage ditches. These latter two 
exclusions are difficult, because they can not be excluded 
simply on a presumption of no impact.
    NAFSMA has consistently urged recognition that storm water 
is a unique form of Clean Water Act discharge. If it is to be 
regulated, the regulations must be based on sound science, 
technological, and financial feasibility, and on watershed 
principles that recognize that storm water is a nonpoint source 
and not a controllable point source.
    In the case of construction sites, NAFSMA has proposed that 
sites less than five acres only be regulated if there is an 
important resource water at risk.
    In the case of the vegetated ditches, we believe that the 
issue is not the type of conveyance, but rather the quality of 
the water going through the conveyance, and the location of the 
discharge.
    A community of 50,000 served by ditches can have as serious 
an impact as a community served by pipelines. It simply does 
not appear possible to us to create equitable categorical 
exclusions. This tends to reinforce our belief that the effort 
to regulate a nonpoint source such a storm water through the 
point source based NPDES program is unworkable for all 
agencies, Phase I and Phase II, alike.
    While local agencies have received significant help in the 
recent Ninth Circuit Court decision, there is still much in the 
character of storm water that warrants a new approach for all 
communities. The science is not yet sound. We still can not 
define the relationships between episodic discharges and 
impacts on the ecosystem. The science still can not demonstrate 
the value of most of our BMPs, with perhaps the exception of 
detention.
    Technological feasibility is still in doubt. Many of our 
BMPs simply relocate pollutants to new locations. Many of our 
urban runoff pollution sources are beyond the control of local 
agencies; for example, air quality, and the design of 
automobiles.
    Financial impacts are still beyond the capability of our 
local agencies. Our storm water program compliance efforts, 
based on BMPs alone, will be in the $100 to $200 billion range.
    Also, there is a continuing avalanche of new regulations, 
related to storm water, stacked on top of the existing, flawed 
stormwater regulatory framework; efforts to use the Federal 
storm water regulations to intervene in local land use 
decisions; the pending TMDL regulations that would impose 
numeric discharge limits; a pending anti-degradation rule that 
would mandate stormwater discharge reductions in growing 
communities for storm water; pending effluent limitations on 
construction sites; and just flat out inconsistent 
regulations--for example, the sale and use regulations on 
pesticides being more liberal than the discharge standards for 
the same constituent, if it comes out the end of the storm 
drain.
    In summary, Mr. Chairman, absent a fundamental change in 
direction, municipalities will spend hundreds of billions of 
dollars on storm water programs, without any reasonable hope of 
achieving the objective, as it is currently stated. All 
communities generate runoff. All runoff is dirty; some more so 
than others. But rather than creating categorical exclusions 
from a poorly structured mandate, NAFSMA continues to believe 
that the better course is the fundamental repair of the storm 
water portions of the Clean Water Act and its programs.
    We thank you for the opportunity to bring our comments to 
you, Mr. Chairman and members of the committee.
    Senator Chafee. Well, thank you very much. I see we are 
joined by Senator Hutchison. Senator, if you would like to have 
a statement, you could do it now, or you could wait, and we 
could accommodate you a little later, if you would like.
    Senator Hutchison. Are they making their opening statements 
at this time, or are you into questions?
    Senator Chafee. No, we are not up to the questions, yet.
    Senator Hutchison. OK.
    Senator Chafee. Ms. Walker has spoken.
    Senator Hutchison. I hope you gave her a great welcome, my 
constituent.
    Senator Chafee. Well, she has referred to your legislation. 
If you would like to make some comments now, or what would you 
prefer?
    Senator Hutchison. We can finish with the panel.
    Senator Chafee. Fine.
    Senator Hutchison. Then I would love to, thank you.
    Senator Chafee. Fine. All right, Mr. Steve Fleischli, 
Executive Director, Santa Monica BayKeeper.

STATEMENT OF STEVE FLEISCHLI, EXECUTIVE DIRECTOR, SANTA MONICA 
        BAYKEEPER, ON BEHALF OF THE CLEAN WATER NETWORK

    Mr. Fleischli. Good morning, Mr. Chairman and members of 
the committee. My name is Steve Fleischli. I am the Executive 
Director of the Santa Monica BayKeeper, here today on behalf of 
the Clean Water Network, a coalition of environmental groups 
from across the country concerned with water quality issues.
    The bulk of my comments will focus on S. 1706. But just 
briefly, I will go through the other two bills. On S. 669, with 
regard to its waiver of sovereign immunity, we support the 
concept very much. We do think Federal facilities need to be 
held accountable to the same standards, and we would encourage 
that.
    There are some minor changes that we would like to see in 
the bill to ensure that there is clarification that it is not 
only a waiver for administrative penalties, but also for civil 
penalties.
    Also, we would like to see a waiver with regard to 
enforcement of settlement agreements or consent decrees that 
may have been entered into, pursuant to the Clean Water Act, 
down the road. I think there is some debate about whether or 
not those are contractual agreements that would need waivers or 
not.
    With regard to the S. 188 SRF bill, we applaud Senator 
Wyden's efforts to try to find a solution to the problem of 
water conservation. It is certainly a serious issue on the West 
Coast, as is water quality.
    We would like to see additional funding. We would like to 
see, also, some sort of categorization, so that we know that 
water quality is not being undermined for this other lofty 
goal. I am sure we can work together on that.
    With respect to the remaining issue, S. 1706, we have heard 
a lot about the improvements that have been in clean water over 
the last 27 years, and everyone seems to agree that there is 
still a long way to go.
    In the environmental community, many of us believe that 
many of our waterways are dying a death of 1,000 cuts, and 
something must be done. This is through control of storm water.
    Many areas of the Clean Water Act clearly state that the 
goal of the Act is to achieve water quality standards and to 
have fishable, swimmable waters across the country. In the end, 
the Act's goal is to eliminate the discharge of pollution to 
waters of the United States.
    Unfortunately, the Clean Water Act's stormwater provisions, 
as written, leave much room for debate, and thus allow 
municipalities to escape responsibility for many violations of 
water quality standards.
    What makes most sense for the Federal Government right now 
is to move forward and set the overall goals in a very strong 
way to protect beneficial uses; to establish meaningful numeric 
limits on storm water controls. Part of this will be achieved 
through the TMDL program, but we need to go further in terms of 
clarifying language in the Clean Water Act.
    What is being proposed today with S. 1706, however, falls 
very short of this goal. Among other things, this bill proposes 
to eliminate the requirement that construction sites less than 
five acres be subject to storm water permits.
    This comes despite the fact that EPA has recognized that 
construction sites can pollute waterways with sediments, 
phosphorous, nitrogen, nutrients from fertilizers, pesticides, 
petroleum products, construction chemicals, and solid wastes. 
EPA has long recognized that, over a short period of time, 
construction sites can contribute more sediment to streams than 
was previously deposited over several decades.
    Indeed, short term loadings may have shock loading effects 
on receiving water, such as low dissolved oxygen. It is also 
acknowledged that erosion rates from construction sites are 
much greater than from almost any other land use.
    Evidence suggests that in some areas of the country, there 
may be as many as five times as many construction sites under 
five acres as there are over five acres. Based on this 
evidence, it makes little sense for Congress to now back off 
this requirement to regulate sites greater than one acre, and 
in essence, reduce the effectiveness of the 1987 amendments.
    The proposed exemption under 1706 on vegetated road ditches 
creates a similar situation. This type of blanket exemption 
fails to recognize that even vegetated drainage ways can convey 
storm water pollution, much the same as ordinary streams or 
channelized storm drain conveyance systems that run along the 
surface.
    Moreover, many drainage ways are operated in connection 
with a roadway or street. Arguably, this proposal could allow 
the exemption of miles upon miles of polluted storm water 
conveyance systems.
    In addition, municipalities--and I know this, in my area, I 
am sure this will come up--will try to argue that modified 
river beds in our area would fall under the exemption language 
that is being proposed today.
    Finally, this bill also attempts to exempt from storm water 
requirements liability for municipalities which contribute to 
violations of water quality standards. This bill does so under 
the guise of one co-permittee's reliance upon another co-
permittee or another entity's willingness to act.
    This is entirely unworkable, as it simply creates a 
scenario where one municipality will point the finger at 
another, saying that something needs to be done. Then the other 
municipality will simply point back and say, well, you were 
supposed to do it; no you were supposed to do it.
    This is what we see in Los Angeles, constantly. We have 85 
cities under one permit. Every time, they point their fingers 
back and forth, saying, ``It is not my responsibility. It is 
the county's responsibility, or it is the city's 
responsibility.'' Therefore, we oppose that.
    With regard to the issue that was raised by Ms. Walker, 
that they need this sort of protection, it seems like it is an 
issue that can be dealt with locally, through contracts, 
through indemnification provisions in the contract. It does not 
need to be dealt with at the Federal level.
    In closing, concerned citizens have worked for years for 
strong action to address numerous sources of pollution that 
contribute to impairment of our waterways. For every person who 
says that storm water is an impossible problem to conquer, 
there is another person finding a way to get there.
    Technological development in this area is flourishing right 
now. There are simple technologies such as silt fences and sand 
bags which, when properly used, will help reduce sediment 
loading from construction sites.
    Numerous different types of other catch basin inserts are 
being developed. Storm drain treatment systems are being 
installed. New methods of landscape architecture are being 
designed. Scientists around the country have demonstrated the 
effectiveness of these technological developments, despite what 
has been said this morning, in reducing contamination of the 
nation's waterways.
    The Federal Government should move forward to set standards 
to which everyone should be held accountable. There should be 
baseline standards.
    The waters of the United States belong to everyone and to 
no one. As such, they must be protected in a way that does not 
allow any individual, municipality, or corporation to 
jeopardize that well-being.
    Thank you.
    Senator Chafee. All right, fine, thank you very much.
    Ms. Sweeney, Assistant Attorney General for the State of 
Maryland.
    Ms. Sweeney. Thank you, Senator.
    Senator Chafee. You may proceed.

 STATEMENT OF MARY ROSEWIN SWEENEY, ASSISTANT ATTORNEY GENERAL 
  FOR THE STATE OF MARYLAND, ON BEHALF OF ATTORNEY GENERAL J. 
 JOSEPH CURRAN, JR. AND THE NATIONAL ASSOCIATION OF ATTORNEYS 
                            GENERAL

    Ms. Sweeney. Mr. Chairman and members of the committee, I 
am Rosewin Sweeney, an Assistant Attorney General from the 
State of Maryland. I am here on behalf of Attorney General Joe 
Curran, a member of the National Association of Attorneys 
General, to testify in support of S. 669, a bill amending the 
Federal Water Pollution Control Act, to ensure compliance by 
Federal facilities with pollution control requirements.
    I would like to thank Senator Coverdell and the bill's 
cosponsors for their attention to this issue. I would also 
applaud Senator Voinovich's comments here today in support of 
the waiver of sovereign immunity.
    The waiver of sovereign immunity has been a key issue for 
the National Association of Attorneys General for many years. 
The Attorneys General adopted a resolution in support of 
similar legislation in 1993. I have provided a copy of that 
resolution with my testimony.
    The Attorneys General support for this bill is based 
essentially on the same reasons that they had in 1993 to 
support the similar legislation.
    First, there is a need for clear authority for Federal, 
State, and local officials, with regard to the enforcement of 
water pollution control laws at Federal facilities.
    Second, Federal agencies and facilities should be subject 
to the same service charges and enforcement provisions as are 
applied to State and local governments and to private industry. 
They should be held equally accountable for their noncompliance 
with water pollution laws.
    Third, the passage of this legislation will enhance water 
pollution control practices at Federal facilities in the future 
by requiring those facilities to fully comply with Federal, 
State, and local water pollution requirements.
    This bill makes the waiver of sovereign immunity in the 
Clear Water Act essentially the same as the waivers presently 
contained in RCRA and in the Safe Drinking Water Act.
    The language of S. 669 differs in minor but appropriate 
respects from the waiver language contained in RCRA and the 
Safe Drinking Water Act, with only one difference in language 
that the committee may wish to correct.
    That was mentioned by Mr. Fleischli in his remarks. That is 
to change paragraph (a)(3)(D) of the bill to make it clear that 
immunity is waived for judicially imposed penalties and fines, 
as well as for those imposed in administrative proceedings.
    This change would make the Clean Water Act's waiver 
language more consistent with RCRA and the Safe Drinking Water 
Act, and would avoid any confusion over whether the waiver of 
immunity for penalties or fines includes penalties and fines 
imposed by State courts.
    The State of Maryland's experience has been that the waiver 
of sovereign immunity in RCRA and the Safe Drinking Water Act 
resulted in an improvement in Federal compliance under those 
laws in recent years. I believe Mr. Fox's testimony indicated 
that Maryland's experience is typical among the States.
    Federal compliance with the Clean Water Act has not seen a 
comparable improvement. By way of example, Federal 
laboratories, research facilities, hospitals, and military 
installations in Maryland have been repeatedly responsible for 
a variety of violations of water pollution laws, including 
overflows from waste water treatment plants; unauthorized 
discharges of pollutants; thermal pollution; and the discharge 
of sediments from many construction sites.
    In preparation for my testimony, I asked my client for some 
examples of recent violations from Federal facilities within 
Maryland. In the space of 2 hours, they were able to provide me 
with a dozen examples of violations at Federal facilities, 
occurring recently, within the last 2 years to 18 months. Seven 
of those examples were at Department of Defense installations.
    Because of sovereign immunity, Federal facilities have been 
able to drag their feet when responding to the State's 
complaints about water pollution problems.
    In our experience, the managers of some of these facilities 
are reluctant to enter into agreements with the State with 
regard to corrective action, not because of the terms proposed 
by the State were unreasonable, but because the managers were 
fearful of how such agreements would reflect on their 
performance at those facilities--their management skills.
    If the Clean Water Act is amended as proposed, Federal 
facilities will be more likely to identify and promptly correct 
pollution problems. There is simply no reason for Federal 
facilities to continue to be held to a lower standard than 
private industry or State and local government.
    I appreciate the opportunity to appear before you today.
    Senator Chafee. Thank you very much, Ms. Sweeney.
    Now, Ms. Lee.

    STATEMENT OF JAN LEE, EXECUTIVE DIRECTOR, OREGON WATER 
                       RESOURCES CONGRESS

    Ms. Lee. Thank you, Mr. Chairman, committee members.
    I am Jan Lee, Executive Director of the Oregon Water 
Resources Congress, which represents local governments who 
provide nonpotable water, water mainly for agriculture water 
supply.
    We strongly support Senate bill 188 as an additional tool 
for enhancing water quality. Our testimony will reflect that we 
have over 13,000 miles of Oregon streams on the 303(d) list of 
EPA's TMDL listings for water limited bodies.
    Most of those streams are listed because of cold water fish 
habitat. That, combined with the Endangered Species Act, 
provides a nexus that will consistently require Oregon water 
users and water suppliers to have additional tools for water 
quality enhancement.
    There has been a considerable success so far with the non-
point source plan, of course, with $96 billion dedicated to 
those resolutions. Certainly, no commitment to that level has 
been made at this point on non-point sources. Currently, the 
SRF funding programs in the State of Oregon do not allow for 
those kinds of projects to be funded from EPA's moneys for the 
revolving funds.
    The State program provides infrastructure potential loans 
for waste water facilities. But for irrigation canals within 
the irrigation districts, which are also local governments, 
there is no such source. Yet, there is potential of saving up 
to half of the water which is now lost, due to 
evapotransportation and conveyance in those systems.
    There have been projects done around the State where water 
has been saved in these conveyances for a public investment of 
some amount of the project cost. That amount of water has been 
returned in stream.
    In Deschutes County in the Deschutes Basin of Central 
Oregon, for example, two miles of canal were lined, returning a 
significant amount of water, half of the water saved to the 
stream to benefit water quality in Oregon's fishery.
    Our State program would be able to incorporate irrigation 
district and local governments into the SRF funding programs if 
you made the change defined in Senate bill 188.
    We also agree with EPA that there should be a nexus to the 
public benefit for water quality. We would be glad to work with 
EPA and the committee and staff to find language to develop 
that.
    For example, if water impaired bodies were to be enhanced 
by a project under this fund, perhaps that should be a 
requirement of this particular bill.
    Currently, there is over $250 million in projects for waste 
water facilities in Oregon. We did have an irrigation district 
who attempted to secure a loan under that program. Even with an 
innovative project that would match some waste water facilities 
with the district, the waiting list is over two decades. So it 
is not viable that something will occur there in the near 
future, without additional funding.
    Oregon's law, since 1987, has allowed for in stream water 
rights the protection of water in stream for fishery and other 
purposes. We also, in the same year, in 1987, encouraged the 
legislature and the legislature enacted the Water Conservation 
Incentive Program.
    That means, if you are to save or conserve water, then 25 
percent or more of that conserved water must go in stream. 
Perhaps more than that can go in stream, if that is negotiated 
between the conserver and the State and the other parties. That 
has been a successful way for us to get some more water in 
stream to protect fishery.
    There is a very considerable potential in Oregon for these 
kind of projects in canal systems. Many of my association's 
members are irrigation districts. They are committed to making 
these kind of changes, but they do need some public investment 
to assist in that area.
    This is a loan program, not a grant program. We are just 
asking for the opportunity to take advantage of the loan 
program, itself. I think if you were to pass this law, we would 
receive the required flexibility to make the program workable 
for more.
     I would like to thank the other interests who have worked 
with us on this bill, with Senator Wyden, the Environmental 
Defense Fund, and the American Farm Bureau Federation.
    The Oregon Farm Bureau, Mr. Pete Test, asked me to reflect 
their comments as matching their own, today. We also work very 
close with Zach Willey, who is the Northwest Environmental 
Defense Fund representative.
    Our three groups have worked together on projects. 
Specifically, in the Deschutes, with EDF, we have worked on 
putting water in stream on a number of projects.
    Thank you for the opportunity.
    Senator Chafee. Well, thank you very much.
    Ms. Sweeney, you spoke about the sovereign immunity. In its 
testimony previously to this panel, the Department of Defense 
witness talked about the waiver of sovereign immunity at 
Superfund sites.
    I know this is an issue important to the Attorneys General 
of the United States, although we did not ask you to address 
that particularly, today.
    What is the position of the National Association of 
Attorneys General on Superfund immunity? Is there any 
information you would like to transmit to us now?
    Ms. Sweeney. It is my belief, Senator Chafee, that the 
association is very much in favor of there being comparable 
waivers of sovereign immunity in all environmental statutes, 
regardless of the media that is dealt with. That would 
certainly apply in the Superfund context.
    Senator Chafee. Well, I suspect that is also true, and you 
are right on that.
    Mr. Harrison, you indicated that 75 percent of the Phase II 
communities do not have public educational outreach, and 46 
percent currently do not spend money on any of the storm water 
activities. What should they be doing, these communities?
    Mr. Harrison. Senator, that information came from a survey 
that we took of communities that were going to be impacted by 
the pending Phase II rule, to see where they were in terms of 
their current storm water programming, and to try to measure 
the impact of the Phase II rule on those communities.
    The question of what Phase II communities should be doing, 
ultimately will depend on the final definition of what a Phase 
II community is: Assuming that it is urbanizing areas, as is 
currently proposed in the draft regulation, we believe that 
there are a variety of management practices that have been 
demonstrated in the Phase I communities that will be applicable 
in the Phase II communities, as well.
    Our problem is that we do not have the ability to prove 
that those BMPs produce a particular amount of improvement in 
the quality of the receiving water. What we can demonstrate is 
that we can remove pollutants from many of the sources in the 
urban community, through those management practices.
    Senator Chafee. Now are you for categorical exemption for 
the vegetative drainage ditches, or should it be based on water 
quality?
    Mr. Harrison. Well, we believe that water quality is 
ultimately the test that has to be applied relative to the 
regulation, and the practices that are to be applied. 
Categorical exemptions run the risk of having unequal impacts 
on local communities, in terms of regulatory requirements, and 
produce an array of related problems.
    Senator Chafee. Ms. Walker, I have some trouble with the 
five acre exemption you are talking about. That does not give 
you problems?
    Judge Walker. Well, basically, I think that our goal is 
drop it back to the one acre.
    Probably our biggest problem with that is in the linear 
construction or in roads, because the basic county road of 
approximately a third of a mile is acre. So anytime my 
commissioner wants to go out and blade a road, or realign a 
drainage ditch of a very, very small area, we have hit the one 
acre limit.
    So that was the basis of our feelings on that. That one 
acre of linear construction, since there is no--although EPA 
has indicated that they are willing to exclude routine road 
maintenance, as the rule is written, as is my understanding, 
there is no exclusion of routine road maintenance.
    So the expense to a county or any other entity in the one 
acre on routine road maintenance is extremely onerous to local 
governments.
    Senator Chafee. Senator Voinovich?
    Senator Voinovich. Yes, Ms. Walker, the proposed rule--one 
of the other responsibilities of this committee is that we are 
concerned about road building in this country, and the 1309 
provisions of the Act in terms of speeding things up, and at 
the same time being consistent with good environment.
    Do you have any comment on what the proposed rule would 
have in regard to road construction and maintenance in your 
area?
    Judge Walker. It is my belief that we would not be against 
road building being a construction activity. Our main problem 
is with routine road maintenance.
    Senator Voinovich. In other words, you believe that it 
would really interfere with your ability to do your routine 
maintenance?
    Judge Walker. Yes, sir, it would, because many of the roads 
we are talking about are gravel roads, caliche roads, or simply 
some other kind of dirt road.
    Disturbing that dirt, that dirt is going into the ditches 
and going into the water, as it is, every day, any time it 
rains. So we have a problem. Those types of roads require more 
maintenance than the paved roads.
    So it is an extremely onerous burden to local governments 
to have to get a permit every time we do that routine road 
maintenance. It would cost a great deal, and cost a lot of time 
lost to the counties or the local entities.
    Senator Voinovich. Thank you.
    Ms. Lee, I am the sponsor of the reauthorization of the 
State revolving loan fund. Congress appropriates about $1 
billion, $300 million under that program today for waste water 
infrastructure, while the need is $200 to $300 billion.
    One of my concerns is that if we expand SRF eligibility, 
that will intrude upon our ability to do the basic job that the 
SRF is supposed to do.
    Do you have any idea of how much money you would spend in 
your State if we expanded the areas that that money could be 
used?
    Ms. Lee. Senator, I believe that the record of these 
projects that have gone forward would show we are using around 
$1 million a year, which would be less than 10 percent of the 
current SRF funding resources in Oregon.
    Right now, the Clean Drinking Water Act fund, under SRF, 
just received a letter from EPA indicating that there is $10.5 
million that would have to be returned to EPA if not used for 
projects. Project sponsors are being looked for, but that would 
be money that could be moved to the Waste Water Program for 
these instances.
    I think what we would like to see in Oregon would be a 
demonstration portion of the SRF fund, perhaps a 5 percent, or 
some constructed amount, looked at as a repository for these 
kinds of projects, where there would be specific State and 
Federal benefits for water quality. We will work with the State 
to try to do that, if this legislation can key in that these 
projects definitely can be financed under the structure.
    Senator Voinovich. Thank you.
    Mr. Harrison, you cited Cincinnati, Ohio, and the refusal 
of the National Institute of Occupational Safety and Health to 
pay the local storm water fee. Would you like to elaborate on 
that a bit?
    Mr. Harrison. Certainly, Senator. This was a case where the 
Federal agency took the position that they were not obligated 
to participate in the cost of the local Storm Water Program, 
even though their storm water from their site was discharged 
into the municipal system.
    All landowners were sharing in an apportioning of that 
cost, through an annual charge. The Federal Government took the 
position they were not subject to that charge. They took it to 
court and succeeded, at least in the early rounds of that 
litigation.
    That case is not an uncommon experience. We have had 
others. I recently received a letter on the new Federal 
Courthouse in our city, indicating that they would really like 
to cooperate with us, but they did not have to. So it is a 
problem that we are seeing throughout the country.
    Senator Voinovich. So it comes about as a result of the 
immunity aspect of this. If we waive that, that problem would 
not exist?
    Mr. Harrison. Well, we certainly think there would be a 
dramatic improvement in the attentiveness of the Federal 
agencies to work with local communities on these compliance 
efforts.
    Senator Voinovich. Thank you.
    Thank you, Mr. Chairman.
    Senator Chafee. Senator Hutchison?

        OPENING STATEMENT OF HON. KAY BAILEY HUTCHISON, 
              U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Hutchison. Thank you, Mr. Chairman.
    First, let me thank you for holding a prompt hearing on my 
bill, as well as the others. You kept your word, and I 
appreciate that very much. I think most of my bill has been 
discussed. certainly, I am sure that Judge Walker addressed the 
major issues.
    I am very pleased that the EPA has said exempting routine 
road maintenance would be acceptable, although they do not 
think it is necessary. I would like to ask them to consider, 
and will do that in a formal way, putting that exemption in the 
final rule.
    Because I believe that would go a long way toward 
alleviating the pain that many of the counties are feeling, for 
exactly the reason that Judge Walker mentioned. That is, their 
biggest concern is not being able to do routine maintenance on 
a third of a mile road that would make them have to go through 
a permitting process. So I would hope that that would be looked 
at in the final rule.
    But the other issues that I would just like to point out 
for the record are that the regulation has really focused on 
these counties, based on population and proximity to urban 
areas. I would hope that the EPA would look at water quality, 
and look at areas where there are problems. Because you are 
looking at counties that are 50,000 people, 25,000 people, that 
do not have budgets like urban counties do.
    An outside consulting firm that was asked to look at the 
cost to these small counties by the National Association of 
Counties estimated that a town or county with a population of 
50,000 estimated that they would be looking at an initial cost 
of $216,000 a year, and then an annual cost of $300,000, as the 
regulation is now perceived.
    Many of counties think it would be much more than that. But 
that is a big hit for a very small community. I think, once 
again, routine road maintenance exemptions would alleviate much 
of that.
    Second, I wanted to mention a study done by the University 
of Texas Center for Research in Water Resources, the Bureau of 
Engineering Research, that concluded that a grassy swell was 
found to be effective for reducing runoff volumes and pollutant 
concentrations, and that they provide a low maintenance 
alternative to structural controls, where sufficient land is 
available and the topography is appropriate.
    This is one of the reasons that we are trying to exempt the 
ground vegetated road ditches, because that has been cited as 
an example of one way to help the environmental run-off.
    Then the other issue that I just wanted to deal with, and I 
would like to ask Judge Walker about this, and that is my bill 
protects counties from liability for failing to comply with 
measures requiring actions exceeding their authority under 
State law.
    Under the EPA's proposal, they are mandating regulations 
that some counties do not have the power to address, because 
they do not have ordinance making power, such as in Texas. I am 
told that other States that have counties without ordinance 
making power include Oklahoma, Wyoming, Illinois, Ohio, 
Pennsylvania, and New York.
    I would just like to ask Judge Walker if she believes that 
counties in Texas would have the ability to adhere to these 
rules without ordinance making power.
    Judge Walker. Thank you, Senator. No, I really do not. As I 
stated before, we do not have that authority. In Texas, 
counties can only do those things that they are allowed to do, 
or are empowered to do, by the State legislature.
    So, as I have noted, we would be put in the position of 
either breaking Federal law or breaking State law. We do not 
have any mechanisms to permit or to assess a fee. The cities 
normally would assess an environmental fee, put it on the water 
utility bills, whatever, across the board to gain the funds 
with which to do these programs.
    Counties in Texas and in many other States do not have that 
capability. So we would have to revert to the ad valorem tax 
base. We, as every other State in the Union, have taxpayers who 
are overburdened already, and who have a real problem with 
that.
    As we talked before, we would simply ask that on several of 
these issues, they be based on water quality, rather than just 
on population. We are willing to accept our responsibility for 
clean water in our communities.
    To do those things, we just do not want them based strictly 
on, if you have got 50,000 people, you must have a problem. You 
must be creating a problem. Let us talk about quality.
    Then we would certainly be willing to work with the 
Senator, and with the EPA and the committee, in finding a way 
to resolve those differences.
    Senator Hutchison. Thank you. That was another issue, the 
inability to assess fees to cover these costs, which means that 
the only avenue a county in Texas has is the ad valorem tax. 
You are not able to levy a sales tax. You can not assess a fee.
    So your only avenue is to add to property taxes. Of course, 
that is the major funding source for schools. So property tax 
owners are pretty heavily hit. Since it is the only thing that 
counties can do, that would be a pretty tough burden.
    Judge Walker. That is entirely correct.
    Senator Hutchison. Just one last question, do you have an 
estimation of what it would cost counties to implement Phase 
II?
    Judge Walker. There have been estimates all the way from 
very low estimates, up to--we use the San Antonio Phase I, it 
cost them, each year, between $7 and $10 per capita, per year.
    We think that would be even greater for counties who do not 
have the infrastructure in place to do those. San Antonio 
already had an environmental and a permitting department. So 
they have that structure in place. We feel that the cost would 
be even larger than that.
    With the increased problem that in many small counties, 
there simply is nobody who is qualified to be an environmental 
engineer, or to carry out those duties. So they would actually 
be looking at contracting with someone from a larger town, in 
many cases, 150 to 200 miles away, to enable them to even put 
the program into place.
    Senator Hutchison. Let me just mention, too, that in many 
of the rural counties that might be next to an urban area, and 
this is very common in Texas, where you would have contiguous 
rural counties to an urban area, they actually do farm and 
raise livestock in these counties. An added ad valorem tax is 
very harmful to farmers and people trying to raise livestock.
    So I just think if we could address some of the major 
issues, which is that the vegetated ditches do work, and they 
are shown to work in many instances. If the exemption for 
routine road maintenance would be an area that we could 
explore, that would help a lot.
    Then, of course, the exemption from liability where a 
county just does not have the legal authority to do what the 
Federal Government is requiring, I think those three things 
should be fairly noncontroversial. I would like to try to work 
on some of the other areas, as well. But I think we do have a 
nugget where we could give relief here.
    Then, of course, I would say the last thing is judging the 
area, rather than an arbitrary population or proximity test; 
but actually see if there is a need for these kinds of 
permitting requirements, based on the actual potential for 
pollution.
    So thank you very much.
    Senator Chafee. Thank you, Senator.
    Mr. Fleischli, how do you react to--I know there are a 
series of exemptions that are suggested here, five acres, under 
five acres, and so forth. But the routine road maintenance 
activity, that seems like a sensible provision. What do you say 
to that?
    Mr. Fleischli. When I hear the term ``routine road 
maintenance,'' it does not insult me. I think it is how you 
define that and what you look at.
    If you are talking about grading even a quarter mile of 
roadway, you can have serious environmental impacts from that. 
I do not know if I would call that road maintenance. Road 
maintenance, in my mind, means going out there and mowing, 
things like that.
    So if it is going to be the grading or clearing, where you 
are going to have sediment exposure of more than an acre, I 
think it needs to be dealt with.
    This is not rocket science. I was driving down from 
Baltimore, yesterday. I saw about a third of an acre site, 
probably, very small. They had silt fences around it; not a big 
deal.
    In terms of this issue of having to get so many different 
permits for this, and every little site is going to have to 
deal with this, in California we have a system under the 
construction permit, where we have a State-wide general permit.
    When you do a construction project, you fill out a one-page 
piece of paper that says you are going to comply with that 
permit. That lays out what your restrictions are, and what you 
need to do.
    So it is not like someone is going to have to go through 
this huge, lengthy process to deal with this for every site. 
They are going to have to simply send in these forms saying 
that they intend to comply. I do not know how Texas does it. 
But they certainly could look into those types of ideas.
    There are a couple of other issues I would like to respond 
to, if you would not mind, Mr. Chair. On the issue of funding, 
in the Clean Water Act right now, under some of the enforcement 
provisions, there is language that says if the local entities 
do not or have certain restrictions within their States on how 
they can raise funds for certain projects, the State then can 
be held liable for the violations of the Act.
    That is designed mostly in the sewage context, I think. But 
it is designed to ensure that that participation occurs, and 
that the State does not hold up people at the local level from 
doing what needs to be done.
    Senator Chafee. OK. Senator Wyden?
    Senator Wyden. Thank you, Mr. Chairman, and again, my 
apologies.
    Senator Chafee. There is no need.
    Senator Wyden. There has been a kind of frenzy back and 
forth with the Assisted Suicide Hearing.
    Mr. Chairman, what Senator Burns and I were trying to do 
was deal with this situation where millions of gallons of water 
are being wasted, every single day.
    It is in the West, obviously. But it is not just in the 
West. It is all over the country.
    You know, what you have is these old irrigation systems. 
They are sort of like ditches. We lose a tremendous amount of 
water due to evaporation or leakage, and then we do not have 
the water for the fish. We do not have the water for the crops. 
We do not have the water, either, for environmental issues or 
agricultural kind of purposes.
    We have got one district in Oregon, the Tumalo District, 
where about 70 percent of the water is diverted, where it just 
does not go for any valuable use such as fish or the crops or 
the like. Frankly, we are seeing this all over the West.
    So with the help of your staff and Senator Baucus', we were 
able to bring together the Environmental Defense Fund and the 
Farm Bureau behind this legislation.
    We really appreciate your having Jan Lee, particularly, 
here today. I am sorry, with the Assisted Suicide Hearing 
which, as you know, is so controversial at home, that I could 
not be here for the entire presentation.
    But I wonder if you could give us an example of a water 
quality problem in Oregon that could be solved by a 
conservation project that puts saved water into a stream, but 
could not be addressed by any of the existing uses under 
today's State revolving fund program?
    Ms. Lee. Yes, thank you, Senator Wyden, Mr. Chairman.
    The North Unit Irrigation District actually piped 1,200 
feet, or about two miles of canal, and was able to return over 
a CFS or equitable to 350 acres of water use, one acre foot per 
acre, to the stream to benefit the fishery.
    These are the kinds of projects that we see as those that 
would both benefit water quality, return water to the stream, 
and also help farmers in reducing their costs and providing 
maximized benefits.
    Senator Wyden. That is the irrigation project over, I 
think, in Madras?
    Ms. Lee. Yes, Senator Wyden, in Madras in Central Oregon in 
the Deschutes Basin.
    Senator Wyden. Very good. Now one of the issues that we 
have been dealing with is that the Environmental Protection 
Agency has said, to some extent, that it is possible to use 
State revolving funds for water conservation projects.
    But what we have found, when we have talked to people, not 
just in Oregon, but around the country, is that there are all 
kinds of bureaucratic hoops and obstacles in terms of trying to 
actually use these State revolving funds.
    Have you all found that there have been bureaucratic 
obstacles in terms of trying to use the money for these kinds 
of projects?
    Ms. Lee. Yes, Senator, we have. When Senate Bill 2189, the 
predecessor to this bill, was introduced, we talked with the 
SRF folks in Oregon. We actually had an irrigation district 
submit an application to see if the process would work.
    What we found is that application is in a long cue of 
applications, and it would be 27 years before it would rise to 
the top of the stack, so to speak, to be possibly funded.
    At the same time, our drinking water at SRF has $10.5 
million which has gone unused, and could be moved over to waste 
water, and used for these types of projects.
    So we think that if this legislation were passed, we could 
get the State to amend its rules for the SRF programs to look 
at these kind of projects, perhaps setting aside some amount as 
a demonstration project, if nothing else.
    Senator Wyden. Twenty-seven years is a long time, even by 
Federal Government standards.
    [Laughter.]
    Senator Wyden. You know, just know that we will work with 
you. I mean, our motivation, and I think what was the 
motivation for the Environmental Defense Fund and the Farm 
Bureau on this is that conservation projects are not clearly 
identified as an eligible use of the State resolving funds. So 
the States really have had difficulty trying to figure out 
exactly how these projects would fit.
    So I think the value of this to clearly make this a 
priority, and to say, we are going to bring environmental folks 
and farmers and irrigators together and say, when we have a 
chance to save millions of gallons of water--I mean, millions 
of gallons of water is being wasted every single day--let us 
stop putting projects in the queue for 27 years, and go out and 
try to have it right now.
    So you have been really helpful. The environmental 
community has been very helpful, and took note of some of the 
suggestions. We are anxious to work with you on this. With the 
leadership of Chairman Chafee and Senator Baucus, I think we 
can get there.
    I just thank you for your thoughtfulness, Mr. Chairman.
    Senator Chafee. Thank you very much, Senator. I want to 
thank all the panel. You have come a long ways, and we 
appreciate that, from Texas and Oregon, and different places. 
So we are very, very grateful to you.
    That concludes the hearing. It has been very helpful.
    [Whereupon, at 11:45 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
    [Additional statements submitted for the record follow:]
    Statement of Hon. Barbara Boxer, U.S. Senator from the State of 
                               California
    Good morning, Mr. Chairman. Thank you for holding this hearing 
today on Clean Water Act issues.
    I am particularly interested in hearing more from the Environmental 
Protection Agency about its proposed stormwater rule to control 
polluted runoff. I have very serious concerns about Senator Hutchison's 
proposal which, in my view, would weaken that long awaited for rule.
    The problem of polluted runoff, and the viruses and toxic 
pollutants it often carries into our rivers, lakes, streams and oceans, 
is the last and most difficult clean water problem we face.
    Today, nearly 40 percent of our waters do not meet the goals of the 
Clean Water Act of keeping our waters fishable and swimmable.
    The leading reason for our failure to meet those goals is polluted 
runoff.
    While polluted runoff affects nearly every corner of the country, 
the Los Angeles area suffers some of the worst runoff problems in the 
nation.
    According to the Southern California Coastal Water Research 
Project, the amount of polluted runoff flowing from L.A. area rivers 
and streams to the ocean has dramatically increased since the Clean 
Water Act was passed in 1972.
    They estimate that in that year about 65 billion gallons of runoff 
made it into the ocean. Today, they estimate that the amount has 
skyrocketed to nearly a half a trillion gallons.
    When it comes to polluted runoff, we are looking at a clean water 
problem that's getting worse, not better. Polluted runoff clouds our 
waters and threatens our fisheries by smothering the eggs of fish.
    It also closes beaches.
    This past summer, state officials closed practically all of 
Huntington Beach waters in Orange County, California, in the face of 
high bacteria counts.
    Further investigation showed that the water contained human viruses 
capable of making swimmers sick. These viruses are believed to be so 
hearty that they can remain capable of causing infection for weeks, and 
may disproportionately affect children who are more vulnerable to such 
infections.
    The pollution that was responsible for the Huntington Beach 
closures was ultimately traced to polluted runoff coming from, in part, 
a nearby construction site.
    The Huntington Beach incident isn't an isolated one.
    A 1995 study by the University of Southern California of 14,000 
beach goers in Santa Monica and Malibu found that one of every twenty-
five people who swam within 400 yards of storm drains came down with 
gastrointestinal viruses or infections.
    The Centers for Disease Control estimates that nationwide up to 
900,000 cases of illnesses occur each year due to the pathogens in 
drinking and recreational waters.
    Mr. Chairman, approximately 60 million people visit the 50 miles of 
shoreline in Santa Monica area each year.
    If we don't control polluted runoff, we will either have to turn 
those people away, or tell them that they and their children swim at 
their own risk.
    That's the wrong answer.
    The right answer, it seems to me, is to adopt strong regulations to 
control this pollution.
    I am concerned, however, that EPA's proposal to control this 
pollution may be weak in certain respects.
    In particular, I am interested in hearing from EPA why its proposal 
fails to provide that stormwater permits contain actual numerical 
pollution limits in the permits. Wouldn't the inclusion of numerical 
limits bring certainty to implementing the stormwater program?
    In addition, I am seriously concerned that Senator Hutchison's 
proposal would further take the rule in the wrong direction.
    For example, the proposal would exempt construction activities 
affecting five or less acres from the stormwater program.
    This would reinstate a reading of the Clean Water Act that was 
invalidated by the Ninth Circuit in 1991. It would also effectively 
exempt most construction activity--a leading cause of polluted runoff- 
from the stormwater rule.
    In my view, Mr. Chairman, we need to toughen EPA's proposed rule to 
combat the problem of polluted runoff, not weaken it.
    Thank you.
                               __________
 Statement of Hon. Conrad Burns, U.S. Senator from the State of Montana
s. 188--water conservation and quality incentives act before the senate 
                environmental and public works committee
    Mr. Chairman and members of the committee, thank you for your 
consideration of S. 188, the Water Conservation and Quality Incentives 
Act, which I introduced with my colleague from Oregon, Senator Wyden. 
This bill is designed to improve water supplies, water habitats, and 
create incentives to conserve our nation's water resources.
    In the West, whiskey is for drinking and water is for fighting! It 
is the most precious commodity to those of us who live out West. We are 
concerned not only with water quality but also water quantity and those 
who control the water.
    Not surprisingly the largest group of water users is farmers and 
ranchers. These people, who provide the American people with the safest 
and most abundant food supply in the world, need water to grow their 
crops and feed their livestock.
    A good deal of water out West is provided through irrigation 
systems which divert waters from reservoirs, rivers, and aquifers. 
However, substantial quantities of water diverted for irrigation do not 
make it to the fields or ranches. A large portion of the water is lost 
due to evaporation or seepage within the canals and ditches in which 
the water flows. Although the water is not lost, since it seeps into 
the soil and assists in the overall soil moisture, it is not 
immediately available to the producer. Water supplied through 
irrigation systems could be increased through improved water 
conservation measures. With improved water delivery, less water would 
be wasted, resulting in more water remaining in our rivers, streams, 
and aquifers.
    Irrigation water is an economic factor in today's market. In most 
irrigation districts, farmers and ranchers pay for any water released 
to them. Any displacement or reduction of this water does not help that 
producer's financial bottom line. Today when food and meat prices are 
low and markets are questionable, it is important that we provide tools 
to these producers to make sure that they have every opportunity to 
stay in business.
    States encourage water conservation measures by recognizing the 
rights of those who conserve water. Irrigators and other water users 
who conserve water are afforded rights to use the water they conserve. 
Water supply problems are also addressed in some states by financial 
incentives which encourage water users to implement cost effective 
water conservation measures consistent with state law.
    However, states are not the only ones who can create such 
incentives. The Federal Government can play a key role by creating 
incentives such as greater flexibility to the states to loan Clean 
Water state revolving funds for water conservation projects. Also, 
allowing water users to apply a portion of the water they save for 
further use encourages more water conservation. This is the approach 
that my good colleague, Senator Wyden, and I have chosen in this bill.
    Our bill will authorize the states to make Clean Water state 
revolving fund (SRF) loans to irrigation districts. They can construct 
pipelines and develop additional water conservation measures. Any water 
conservation project would be structured to allow participating users 
to receive a share of the water saved through conservation or more 
efficient use, in accordance with state law. This type of approach 
would create a win/win situation with more water available for both the 
conservers and for river and stream flows. By using state SRF program 
funds, the loan money would be repaid over time to become available to 
fund other water conservation measures to solve water quality problems 
in other areas.
    A key underlying feature of the legislation, is that the water 
saved under this bill will not only help the producer in water and cost 
savings, but will also save many rivers and streams in the West. For 
example, water conserved could be made available to increase the volume 
of water flowing through our rivers and streams thereby facilitating 
fish habitat and migration routes. This is especially critical out 
West. Two fish species, the Northwest salmon and bull trout listed as 
endangered would greatly be helped.
    To illustrate how this bill would work, I'd like to share a real 
life problem in Racetrack Creek located in western Montana. It is a 
tributary of the Clark Fork River within an EPA Superfund site due to 
historic damages from copper mining and milling. Racetrack Creek is a 
spawning ground for bull trout (a listed threatened species) and it has 
had problems in maintaining its water levels since the turn of the 
century. A local watershed management group, the Upper Clark Fork 
Steering Committee, is working on this problem with a wide cross 
section of representation from the Clark Fork River basin. The Upper 
Clark Fork Steering Committee and the Montana Department of Fish, 
Wildlife, and Parks (FWP) are working to line Morrison Ditch which 
diverts water for irrigation in the local area. A portion of the water 
right ``salvaged'' by lining Morrison Ditch, under this bill, would be 
leased by Montana's FWP from the ditch association to benefit that 
fishery.
    I would like to point out that this bill has broad support by 
Senators on both sides of the aisle, as well as from the Farm Bureau 
and the Environmental Defense Fund. Such a diverse range of interests 
in support of this bill begs favorable consideration of this bill. It:

    1. addresses the problem of adequate water supplies for our 
agricultural producers;
    2. addresses the problem from nonpoint source runoff;
    3. creates new incentives for water users to conserve water;
    4. provides the states greater flexibility to make loans from their 
Clean Water state revolving fund for water conservation projects; and
    5. does not increase the budget since it recovers money provided 
for water conservation projects through loan repayments to state 
revolving loan funds.

    I would like to thank Senator Wyden for his work on this measure 
and am pleased to work with him on this issue of great importance. If 
there are any suggested changes, we are open to them.
    I thank you Mr. Chairmen, for the Committee's consideration of this 
bill.
                               __________
  Statement of Hon. Paul D. Coverdell, U.S. Senator from the State of 
                                Georgia
    I would like to thank the distinguished Chairman for holding a 
hearing on this important piece of legislation, the Federal Facilities 
Clean Water Compliance Act; my distinguished colleagues, Senators 
Breaux, DeWine, Grams, Chafee and Voinovich, for cosponsoring this 
bill, and the witnesses that have come today to help illustrate the 
need for this legislation. This legislation will guarantee that the 
Federal Government is held to the same full range of enforcement 
mechanisms available under the Clean Water Act as private entities, 
states, and localities. Each Federal department, agency and 
instrumentality will to be subject to and comply with all Federal, 
State, and local requirements with respect to the control and abatement 
of water pollution and management in the same manner and extent as any 
person is subject to such requirements, including the payment of 
reasonable service charges.
    It has been over 26 years since the enactment of the Clean Water 
Act. This Act has been an effective tool in improving the quality of 
our nation's rivers, lakes, and streams. Over that period of time, 
however, states have not had the ability to impose certain fines and 
penalties against Federal agencies for violations of the Clean Water 
Act. This is a double standard that should not be continued.
    In 1972, Congress included provisions on Federal facility 
compliance with our nation's water pollution laws in section 313 of the 
Clean Water Act. Section 313 called for Federal facilities to comply 
with all Federal, state, and local water pollution requirements, 
However, in 1992, the U.S. Supreme Court ruled in U.S. Department of 
Energy v. Ohio, that States could not impose certain fines and 
penalties against Federal agencies for violations of the Clean Water 
Act and the Resource Conservation Recovery Act (RCRA). Because of this 
decision, He Federal Facilities Compliance Act (H.R. 2194) was enacted 
to clarify that Congress intended to waive sovereign immunity for 
agencies in violation of RCRA. Federal agencies in violation of the 
RCRA are now subject to State levied fines and penalties. However, this 
legislation did not address the Supreme Court's decision with regard to 
the Clean Water Act. The Federal Facilities Clean Water Compliance Act 
of 1998 makes it unequivocally clear that the Federal Government waives 
its claim to sovereign immunity in the Clean Water Act.
    The Federal Government ovens hundreds of thousands of buildings, 
located on millions of acres of land, none of which have to abide by 
the same standards as a private entity does under the Clean Water Act. 
This legislation simply ensures that the Federal Government lives by 
the same rules it imposes on everyone else.
    I would like to thank Senator Chafee, Senator Breaux, Senator 
DeWine, Senator Voinovich and Senator Grams for cosponsoring this 
important legislation, and look forward to working with them and my 
other colleagues in the U.S. Senate on its speedy consideration.
                               __________
 Statement of J. Charles Fox, Assistant Administrator for Water, U.S. 
                    Environmental Protection Agency
Introduction
    Good morning Mr. Chairman and members of the Committee. I am Chuck 
Fox, Assistant Administrator for Water at the U.S. Environmental 
Protection Agency (EPA). I am pleased to be able to talk with you this 
morning about the Nation's clean water program and several bills that 
would amend the Clean Water Act.
    Next Monday, October 18, is the 27th anniversary of the enactment 
of the Clean Water Act (CWA). Twenty-seven years ago, the Potomac River 
was too dirty to swim in, Lake Erie was dying, and the Cuyahoga River 
was so polluted it burst into flames. Many rivers and beaches were 
little more than open sewers.
    Enactment of the CWA, under the leadership of this Committee, 
dramatically improved the health of rivers, lakes and coastal waters. 
It stopped billions of pounds of pollution from fouling the water and 
doubled the number of waterways safe for fishing and swimming. Today, 
many rivers, lakes, and coasts are thriving centers of healthy 
communities.
    In my testimony today, I want to describe the work EPA is doing to 
carry the clean water program forward to the next century and comment 
on several bills to amend the CWA that are before the Committee today.
        clean water for the future--the clean water action plan
    Despite tremendous progress, almost 40 percent of the Nation's 
waterways assessed by States still do not meet water quality goals. 
Pollution from factories and sewage treatment plants, soil erosion, and 
wetland losses have been dramatically reduced. But runoff from all 
sources, including that from city streets as well as from farmland and 
rural areas continues to degrade the environment and puts drinking 
water at risk. Fish in many waters still contain dangerous levels of 
mercury, polychlorinated biphenyls (PCBs), and other toxic 
contaminants. Beach closings are increasingly common.
    Several years ago, after taking a hard look at the serious water 
pollution problems around the country, the Administration concluded 
that implementation of the existing programs was not stopping stop 
serious new water pollution threats to public health, living resources, 
and the Nation's waterways, particularly from polluted runoff. We 
concluded that clean water programs lacked the strength, resources, and 
framework to finish the job of restoring rivers, lakes, and coastal 
areas.
    In response to this concern, President Clinton and Vice President 
Gore announced, in February 1998, a major new effort to speed the 
restoration of the Nation's waterways. The Clean Water Action Plan 
builds on the solid foundation of the Clean Water Act and describes 
over 100 actions--based on existing statutory authority--to strengthen 
efforts to restore and protect water resources.
    The Action Plan is built around four key tools to achieve clean 
water goals.
      A Watershed Approach The Action Plan envisions a new, 
collaborative effort by Federal, State, Tribal, and local governments; 
the public; and the private sector to restore and sustain the health of 
the over 2,000 watersheds in the country. The watershed approach is the 
key to setting priorities and taking action to clean up rivers, lakes, 
and coastal waters.
      Strong Federal and State Standards The Action Plan calls 
for Federal, State, and Tribal agencies to revise standards where 
needed and make programs more effective. Strong standards are key to 
protecting public health, preventing polluted runoff, and ensuring 
accountability.
      Natural Resource Stewardship Most of the land in the 
Nation's watersheds is cropland, pasture, rangeland, or forests, and 
most of the water that ends up in rivers, lakes, and coastal waters 
falls on these lands first. Clean water depends on the conservation and 
stewardship of these natural resources. This Action Plan calls on 
Federal natural resource agencies to support State and local watershed 
restoration and protection.
      Informed Citizens and Officials Clear, accurate, and 
timely information is the foundation of a sound water quality program. 
Informed citizens and officials make better decisions about their 
watersheds. The Action Plan calls on Federal agencies to improve the 
information available to the public, governments, and others about the 
health of their watersheds and the safety of their beaches, drinking 
water, and fish.
    We are making good progress in implementing the over 100 specific 
actions called for in the Clean Water Action Plan. Congress has 
provided vital support to this work by appropriating critical funding, 
including almost doubling funding for State grants to reduce polluted 
runoff to the level of $200 million per year.
    Some key accomplishments include unified assessments of watershed 
health by States, initiation of several hundred Watershed Restoration 
Action Strategies, a new BEACH action plan, a response plan for 
pollution threats to coastal waters, new efforts to support development 
of riparian buffers, and a contaminated sediment strategy. Many other 
critical projects are underway at EPA, the Department of Agriculture, 
the Department of Interior, the National Oceanic and Atmospheric 
Administration, and other agencies, as well as in States, local 
governments, and the private sector.
    The Clean Water Action Plan is a sound blueprint that takes clean 
water programs into the next century. I ask, Mr. Chairman, that a copy 
of the first annual report of progress to implement the Clean Water 
Action Plan be included as part of my testimony in the hearing record.
                  proposed clean water act amendments
    Before commenting on the several bills before the Committee today, 
I want to take a moment to look at the bigger picture of CWA 
reauthorization.
    As you know, Mr. Chairman, key funding authorization and several 
clean water SRF provisions of the CWA expired in 1994. At that time, 
the Administration saw this as an opportunity to release a detailed 
proposal for comprehensive amendments to strengthen the CWA.
    Last week, I testified before this Committee on bills to amend the 
Clean Water State Revolving Loan Fund program and to address the 
challenging problem of controlling overflows from combined storm and 
sanitary sewers. Today, I am testifying on bills related to storm water 
permits, expanded use of the State Revolving Loan Funds, and expanded 
enforcement at Federal facilities. I gather that additional legislative 
hearings are likely to be scheduled.
    Although the Administration is pleased to provide comments on the 
specific provisions of each of these narrowly focused bills, I want to 
encourage the Committee to consider the need to strengthen the CWA in 
several critical areas that are not now the subject of proposed 
legislation. For example, the Administration's proposal in 1994 called 
for strengthening statutory authority to reduce polluted runoff, better 
protect wetlands, reduce toxic pollution, and improve compliance and 
enforcement. The clean water program has evolved over the past 5 years, 
but most of the recommendations we made in 1994 are still appropriate 
today.
    In addition, there is a relatively recent development that poses a 
serious threat to water quality in coastal and other waters that should 
be addressed quickly. Congress should act to close a regulatory gap 
that threatens the loss of tens of thousands of acres of wetlands to 
drainage and excavation each year. This gap--which resulted from a 
court decision invalidating the U.S. Environmental Protection Agency 
and Army Corps of Engineers ``Tulloch'' rule requiring permits for 
drainage and channelization that affect our Nation's wetland 
resources--promises to defeat wetlands protection efforts unless 
Congress takes prompt action.
    The Administration is ready to work with this Committee and 
Congress to strengthen the CWA.
    Let me now comment on the pending bills to amend the CWA, including 
bills to clarify the storm water program, strengthen enforcement 
against Federal facilities, and expand eligibility of the clean water 
State Revolving Loan Funds.
Legislation to Revise Storm Water Programs
    The Committee asked that I comment on a bill--S. 1706--to make 
amendments to the storm water pollution control authority of the CWA. 
The Administration has significant concerns with several provisions of 
the bill and is opposed to the bill as drafted.
    In 1987, Congress added subsection 402(p) to the Clean Water Act to 
requiring EPA to develop a phased regulatory program to control 
contaminated discharges associated with storm water runoff. Congress 
was responding to scientific evidence that storm water discharges 
contributed to the impairment of one-third of all assessed surface 
waters in the United States.
    In the first phase of the program, the most significant sources of 
storm water were to be controlled. EPA finalized Phase I storm water 
regulations in November 1990. Those regulations generally required CWA 
permits for storm water discharges associated with certain industrial 
activities, medium and large municipalities, and large construction 
sites. Permits generally give sources flexibility to implement various 
management practices to reduce pollution levels in storm water. Today, 
the existing Phase I storm water program is resulting in significant 
improvement of surface water quality in the United States.
    In response to statutory requirements to identify a second tier of 
storm water sources, EPA developed, and is now working to finalize, 
Phase II storm water regulations. As we developed the Phase II 
regulation, EPA solicited input from stakeholders by convening a 
Federal advisory committee which met 14 times. EPA developed 3 pre-
proposal public drafts and received 40-50 sets of comments. EPA 
received additional input by convening a SBREFA Panel to solicit input 
from potentially regulated small entities.
    On January 9, 1998 EPA proposed Phase II storm water regulations 
that address storm water discharges associated with small municipal 
storm sewer systems and small construction sites. Small municipal storm 
sewer systems include incorporated places, counties, and other places 
under the jurisdiction of a governmental entity that are located in an 
urbanized area but not included in Phase I. Small construction sites 
are defined as sites that disturb between 1 acre and 5 acres of land. 
The proposed rule, however, included several waivers of the permit 
requirement for these construction sites (e.g. construction that occurs 
in low rainfall periods).
    The Phase II regulations are modeled after the Phase I rule and 
would establish a cost-effective, flexible approach for reducing 
environmental harm by storm water. The management measures in Phase II 
reflect Phase I management measures which are well-accepted, common-
sense practices that many local governments and other stakeholders 
agree are cost-effective and appropriate for controlling water 
pollution.
    Core storm water management measures include:

      public education and outreach;
      public participation and involvement;
      illegal discharge detection and elimination;
      control of construction site runoff;
      post construction runoff control; and??
      pollution prevention and good housekeeping.

    The proposed rule also conditionally excludes discharges from those 
industrial facilities that have ``no exposure'' to storm water, thereby 
significantly reducing the current Phase I requirements. the rule 
proposed to extend from August 7, 2001 until 3 years and 90 days from 
publication the deadline by which certain industrial facilities owned 
by small municipalities must obtain CWA permit coverage.
    EPA received 550 comments on the proposal, held 6 public hearings 
to gather additional information from stakeholders and adopted many 
recommendations in the final rule. The Phase II rule is scheduled to be 
promulgated on October 29, 1999.
    The legislation before the Committee today would amend section 
402(p) of the CWA in ways that would both seriously weaken existing 
storm water pollution controls and dramatically restrict the water 
pollution controls to be promulgated in Phase II regulations.
    The proposed Phase II regulations provide that a municipality 
holding a storm water permit may rely on another local government to 
carry out specific permit conditions without establishing a co-
permittee relationship. EPA believes that this provision gives local 
governments flexibility in addressing storm water problems and will 
reduce overlap of program effort. In this case, the permittee, however, 
is still responsible for assuring that permit conditions are met and is 
subject to enforcement action if a permit condition is violated.
    The bill would create a new subparagraph 402(p)(3)(B)(iv) to 
provide that when a permittee relies on a second governmental entity to 
carry out storm water related actions, the permittee is not subject to 
enforcement action if the second governmental entity does not do its 
job. Because the bill would not require the second governmental entity 
to be officially part of the permit (i.e. not a ``co-permittee'') it 
too would not be subject to enforcement action. The bill would create 
cases where no one is legally responsible for storm water pollution. 
Without an effective enforcement response, compliance with storm water 
permits, and control of storm water pollution, will be significantly 
reduced.
    EPA recognizes that various municipal governments around the 
country have different authorities and capacities and that in many 
areas, implementing storm water permit requirements will require a 
cooperative effort among diverse local agencies. EPA expects that when 
a Phase II storm water permit provides for implementation by several 
parties, that permit will specifically assign duties to ``limited co-
permittees'' that are liable for permit compliance. Where a Phase II 
storm water permit makes clear assignments, EPA will, in the event of 
noncompliance, direct enforcement to the party that has failed to do 
its job. In this respect, the Phase II storm water program is unlike 
other permit situations (e.g. situations where one party has 
substantial operational control over another party and both entities 
are jointly liable ``co-permittees.'') The waiver of liability in the 
draft bill for any ``co-permittee'' is inappropriately broad.
    Proposed section 402(p)(7)(A) would waive the requirement that a 
local government obtain a permit for storm water discharges from an 
``above-ground vegetated drainage ditch or a drainage way owned or 
operated in conjunction with a road or street under the jurisdiction of 
a local government.'' This provision would remove any ``above ground'' 
storm water conveyance (as opposed to an underground conveyance) from 
the Phase II permit program, thereby substantially narrowing the scope 
of the program and reducing water quality benefits.
    Above ground conveyances convey storm water pollutants to waters of 
the United States as do underground storm sewers, albeit sometimes at a 
slower or more controlled rate. Many of the management measures 
provided for in the Phase II rule are equally appropriate for above 
ground and underground conveyances (e.g. control of dumping of non-
storm water pollution into storm sewers).
    Proposed section 402(p)(7)(B)(i) would exempt any storm water 
discharges associated with construction activity of less than 5 acres 
from the permit requirements of the CWA. These construction activities 
are a significant source of water pollution and meeting clean water 
goals will be virtually impossible without the effective control of the 
substantial sediment and nutrient pollutants form these sources.
    Under current Phase I storm water rules, storm water discharges 
from construction activity disturbing more than five acres is subject 
to regulation under the clean water permit program as ``storm water 
associated with industrial activity.''
    In addition, Phase I rules provide that a discharge from activity 
disturbing less than five acres is subject to regulation if (1) the 
activity it is part of a larger common plan of development or sale or 
(2) the permitting authority designates discharges from the activity as 
a contributor to a violation of a water quality standard or a 
significant contributor of pollutants. The bill could be interpreted to 
overturn these existing water pollution controls.
    Authority to require permits for small construction sites that are 
part of a larger plan of development or sale is important because 
construction typically occurs in stages. Regardless of the individual 
lot size in a development of many small lots, the cumulative water 
quality impact of this work can be equivalent to a larger development.
    Case-by-case designation of small construction sites as needing a 
clean water permit is an essential tool for protecting sensitive water 
bodies. In addition, States and EPA need designation authority to 
assure that measures to restore impaired waters identified in a ``total 
maximum daily load `` analysis are effectively implemented.
    The bill would, of course, also overturn the provision of the soon 
to be promulgated Phase II rule requiring small construction sites to 
have a clean water permit. There is extensive evidence of the serious 
water pollution problems caused by small construction sources. We 
believe the Phase II rule strikes the right balance in responding to 
this problem by requiring permits for these sources but also waiving 
the permit requirements where the likelihood of pollution is shown to 
be limited (e.g. in low rainfall periods).
    Proposed section 402(p)(7)(B)(ii) would codify previous EPA 
statements about interpretation of ``land disturbance'' as it relates 
to storm water associated with construction activity. EPA distinguishes 
road construction (initial disturbance) from road maintenance 
(subsequent regrading and leveling) to exclude the latter. EPA does not 
oppose this section, but believes it is unnecessary.
Legislation to Strengthen Federal Facilities Enforcement
    In April 1992, the Supreme Court ruled in Department of Energy v. 
Ohio that the United States has not waived its immunity from liability 
for civil ``punitive'' penalties for violations of the CWA. As a 
result, neither States or citizens can obtain punitive penalties for 
violations of the Act.
    The Federal Facilities Clean Water Compliance Act of 1999--S. 669--
would explicitly waive Federal sovereign immunity for all penalties for 
violations of the CWA and would create new authority for administrative 
penalties against Federal facilities. This legislation is consistent 
with Administration proposals for amendments to the CWA made in 1994 
and amendments to the Act reported by this Committee the same year.
    The Administration supports the legislation. However, the Agency 
would like to work with the Committee to clarify several issues. Most 
importantly, the CWA should continue to provide the President with the 
authority to exempt Federal facilities from compliance with certain 
requirements where it is in the paramount interest of the United States 
to do so; S. 669 may operate to remove this existing authority.
    Amending the CWA as proposed in S. 669 would continue the precedent 
of clearly waiving sovereign immunity in other reauthorizations of 
environmental laws. In October 1992, partially in response to the 
Department of Energy v. Ohio decision, Congress passed the Federal 
Facility Compliance Act.
    That legislation (1) waived the Federal Government's immunity from 
penalties for violations of the Resource Conservation and Recovery Act 
(RCRA) and (2) provided EPA with RCRA administrative order authority 
against Federal facilities under RCRA. Likewise, the 1992 amendments to 
the Toxic Substances Control Act (TSCA) gave EPA order and penalty 
authority for violations of the lead-based paint notification 
provisions of TSCA.
    In the 1996 re-authorization and amendment of the Safe Drinking 
Water Act (SDWA), Congress provided EPA with enforcement authorities 
against Federal facilities similar to those applicable to RCRA.
    In 1997 the Justice Department Office of Legal Counsel issued a 
decision clarifying EPA's administrative penalty authorities under the 
Clean Air Act (CAA).
    The clear message here is that, with the help of Congress, we are 
beginning to ``level the playing field'' for Federal facilities.
    By enhancing enforcement authorities, Congress has sought to ensure 
that EPA would be an independent force to keep environmental compliance 
a high priority for the Federal community. EPA and the States have been 
taking this role seriously. Since the Federal Facility Compliance Act 
was passed in 1992, EPA and the States have issued over 200 RCRA 
administrative orders to Federal Facilities with assessed penalties of 
over $20 million. Last year, EPA issued its first ever administrative 
penalty orders at Federal facilities under the SDWA, CAA, and TSCA 
(lead-based paint).
    Perhaps more important than penalty or order numbers is the fact 
that, since 1993, we have seen an increase in RCRA compliance rates by 
Federal facilities. In the same time period, CWA compliance rates by 
Federal facilities have not followed that same pattern. While it is too 
early to see any Federal facility compliance rate trend associated with 
the recent penalty authorities under SDWA, CAA, and TSCA, the 
correlation between penalty authority and increased compliance rates 
under RCRA as compared to the lack of penalty authority and current 
compliance rates under CWA cannot be dismissed.
Legislation to Expand SRFs Use for Water Conservation
    S. 188 would amend the CWA to make an expanded group of 
organizations and persons eligible for loans from the Clean Water State 
Revolving Loan Funds (SRFs) to implement water conservation projects 
and other projects with water quality benefits.
    Today, the clean water SRFs are able to make loans to publicly 
owned treatment works to finance projects to conserve water including 
``structural'' approaches (e.g., publicly owned water meters, water 
saving or recycling devices, and grey-water separation systems) and 
``non-structural'' measures (e.g., public education and incentive 
wastewater service charges). These conservation measures reduce flows 
to sewage treatment works, reduce capital expansion needs, and thereby, 
provide significant public benefits.
    In addition, under current law, when a nonpoint pollution plan 
approved by EPA under section 319 or an estuary plan approved by EPA 
under section 320 provide for water conservation, projects to implement 
these plans are currently eligible for SRF loans. Diverse public and 
private parties (i.e. parties other that publicly owned treatment 
works) can be eligible to receive the loans, depending on State law.
    The proposed legislation would specifically authorize SRF loans for 
water conservation activities outside of a municipal sewer system for 
non-residential water conservation activities, specifically, 
conservation of water used for agriculture. The bill would also make 
private organizations and individuals eligible for the loans.
    Conservation of agricultural water can have dramatic benefits for 
aquatic life and water quality and the Administration supports using 
SRFs to finance such projects under specific circumstances. For 
example, water conservation projects that would make more water 
available to augment flow in a water body where the State has 
identified low flow as a cause of nonattainment of a designated use 
should be eligible for SRF funding.
    We are concerned that, as presently drafted, the bill would allow 
States to use SRF loans for water conservation projects with limited 
environmental benefits, and would expand eligible loan recipients. New 
authority for use of SRFs for projects with a ``water quality benefit'' 
is vague and needs to be better described and discussed. The 
Administration intends that the primary focus of clean water SRFs 
remains infrastructure investments to help municipalities meet water 
quality goals. We would like the opportunity to work with sponsors of 
the bill and the Committee to better define the circumstances under 
which SRF loans could be made to public and private entities for water 
conservation or other purposes.
                               conclusion
    Thank you, Mr. Chairman and members of the Committee for this 
opportunity to testify on proposed amendments to the CWA. EPA stands 
ready to provide additional technical assistance on issues related to 
these bills.
    I will be happy to answer any questions.
                                 ______
                                 
  Responses by Charles Fox to Additional Questions from Senator Wyden
    Question 1. The Administration's Clean Water Action Plan identifies 
polluted runoff as the leading water quality problem today. Yet, in 
your testimony, you stated that ``The Administration intends that the 
primary focus of clean water SRF's remains infrastructure investments 
to help municipalities meet water quality goals. Aren't you essentially 
saying that the SRF program, which is EPA's largest water quality 
program, is not going to be used primarily to address the biggest 
current water quality problem? Shouldn't Clean Water SRF funds be 
available to meet the biggest water quality needs and hasn't it been 
the case that 5 percent or less of SRF funds have gone toward runoff 
projects?
    Response. The fiscal year 2001 President's budget proposes 
appropriations language that will allow States discretion to use up to 
19 percent of their annual capitalization grants for the Clean Water 
State Revolving Fund for grants, rather than loans, to finance projects 
to reduce nonpoint source pollution and protect estuaries. This new 
authority would give States much needed flexibility in designing 
financing packages for nonpoint source control projects that are 
viable. This proposal was also included in the fiscal year 2000 
proposal. Congress did not pass an appropriations bill that included 
this new authority for fiscal year 2000.
    States began issuing loans from their Clean Water SRF's in 1988, 
and in the first 2 years, the loans went exclusively toward 
construction, expansion, and/or upgrading of publicly owned treatment 
works. SRF loans for treatment works have greatly assisted 
municipalities in meeting human health and water quality goals, and we 
are very proud of the success of the SRF's and what they have 
contributed toward improved water quality across the nation.
    The SRF's began to issue nonpoint source (i.e., runoff) loans in 
1990, and since then, there have been significant increases in the 
number of states funding nonpoint source projects (25 states to date 
with another 6 expected in 2000) and in the variety of nonpoint source 
projects being funded (agricultural cropland and animal best management 
practices, silviculture, urban runoff, ground water protection, 
brownfields remediation, underground storage tank remediation, landfill 
remediation, septic tank replacement, hydromodification, and estuary 
improvement). The amount of money going to nonpoint source projects is 
still relatively small compared to the amount going toward publicly 
owned treatment works, because nonpoint source projects tend to be much 
smaller and less expensive than traditional wastewater treatment plant 
construction projects. To illustrate, 6 percent of funds loaned in 1999 
went to nonpoint source projects, corresponding to 36 percent of all 
loan agreements for nonpoint source projects.
    EPA encourages states to identify their water quality concerns 
across the state, both point source and nonpoint source, and to direct 
the funds in their SRF's toward the highest-priority water quality 
projects, whether they be point source or nonpoint source.

    Question 2. You say in your testimony that you're concerned that my 
bill would allow States to use SRF loans for water conservation 
projects with limited environmental benefits. The SRF provisions of the 
Clean Water Act already include language assuring there must be water 
quality benefits for any funds used in the SRF program. Specifically, 
Clean Water Act Section 602(b)(5) requires all SRF funds to be used 
``to assure maintenance of progress, as determined by the Governor of 
the State, toward compliance with the enforceable deadlines, goals, and 
requirements of the [Clean Water] Act. . . '' A State must demonstrate 
that all SRF funds it receives from EPA will meet this test. This 
requirement is already in the law and my bill doesn't change it, so 
this requirement would continue in effect for any funds used for water 
conservation projects. Why does EPA think making progress toward 
achieving Clean Water Act goals and requirements is not sufficient 
assurance that there will be environmental benefit from water 
conservation projects when this is the same test currently applied to 
other uses of SRF funds? If EPA thinks additional assurance of 
environmental benefits is needed for water conservation projects, what 
language would EPA propose including in S. 188 to provide this 
assurance?
    Response. The Administration intends that the primary focus of the 
Clean Water SRF remains infrastructure investments to help 
municipalities meet water quality goals. We would like the opportunity 
to work with the sponsors of the bill and the Committee to better 
define the circumstances under which SRF loans could be made to public 
and private entities for water conservation or other purposes.
    Water conservation is already an eligible purpose for the CWSRF in 
many cases. The clean water SRFs are able to make loans to publicly 
owned treatment works to finance projects to conserve water including 
``structural'' approaches (e.g., publicly owned water meters, water 
saving or recycling devices, and gray-water separation systems) and 
``non-structural'' measures (e.g., public education and incentive 
wastewater service charges). These conservation measures reduce flows 
to sewage treatment works, reduce capital expansion needs, and thereby, 
provide significant public benefits.
    In addition, under current law, when a nonpoint pollution plan 
approved by EPA under section 319 or an estuary plan approved by EPA 
under section 320 provide for water conservation, projects to implement 
these plans are currently eligible for SRF loans. Diverse public and 
private parties (i.e. parties other that publicly owned treatment 
works) can be eligible to receive the loans, depending on State law.
    As noted in the testimony, there are several important policy 
changes in S. 188 about which the Administration is concerned. Without 
minimizing the need for additional dialog, in response to your 
question, we would suggest some slight modifications to S. 188, Section 
3 (2) ``Financial Assistance'' so as to ensure that the projects funded 
contribute to water quality improvements as well as water conservation.
                               __________
   Statement of Bruce DeGrazia, Assistant Deputy Under Secretary of 
                    Defense (Environmental Quality)
S. 669, Federal Facilities Clean Water Compliance Act of 1999
    Good morning. My name is Bruce deGrazia. I am the Assistant Deputy 
Under Secretary of Defense (Environmental Quality) in the Office of the 
Secretary of Defense. I would like to thank you for the opportunity to 
speak before this Committee on the proposed bill S. 669, ``Federal 
Facilities Clean Water Compliance Act of 1999.''
    Secretary Cohen stresses the importance of Defense preparedness so 
the United States can lead the world into a new, more peaceful century. 
Our National Security Strategy works to foster a stable international 
order, allowing critical regions to be stable and free from domination 
by hostile powers, where the global economy and trade are free to grow, 
where democratic norms are widely accepted, and where nations freely 
cooperate to prevent and also respond to natural and political 
calamities.
    The three elements of the Secretary's defense strategy are: Shape, 
Respond and Prepare. Environmental Security is active in each of these 
categories helping:
      SHAPE the international security environmental in ways 
favorable to U.S. interests, promoting regional stability through 
military-to-military cooperation
      RESPOND by supporting critical environment and health 
requirements of military operations
      PREPARE by sustaining access to land, air, and sea for 
training through responsible management of our installations and 
training lands.
    I'm here today to discuss how Environmental Security is protecting 
our waters while supporting the Secretary's priorities and defense 
strategy.
                environmental security vision and goals
    Recognizing the Secretary's top priorities--people, readiness, and 
modernization within the context of the hierarchy of the National 
Security Strategy Environmental Security prepared a new vision 
statement this year. The new vision statement emphasizes the importance 
of integrating environmental, safety and health activities into DoD 
operations, protecting readiness through wise environmental management 
of ranges, and supporting modernization by improving the quality and 
reducing the costs of defense acquisition and procurement.
    VISION: To have fully incorporated environmental, health and safety 
values into the culture of the Department of Defense. These core values 
are recognized by the uniformed and civilian customers throughout the 
Department of Defense and its external stakeholders. They are vital 
parts of all operational and business decisions whereby the safety and 
health of our people, protection of weapons systems, facilities, and 
the environment are integrated into all worldwide national defense 
activities.
    We have identified five specific goals within the Environmental 
Security program to meet the safety, health, and environmental needs of 
the new millennium.
      Support readiness of U.S. Forces by ensuring access to 
air, land and water for training and operations
      Improve quality of life by protecting military personnel 
and families from environmental, safety and health hazards and by 
providing recreational opportunities (e.g., hunting, fishing, camping, 
hiking)
      Ensure weapons systems, logistics, installations, et al., 
have greater performance, lower lifecycle costs, and minimal health and 
environmental effects
      Serve customers, clients, stakeholders through public 
participation and advocacy
      Enhance international security through military-to-
military cooperation.
    These goals are the underpinnings for current activity at 
Environmental Security. The second goal improving quality of life is 
especially relevant to today's hearing.
               department of defense clean water program
    The Department of Defense has long had a policy of full and 
sustained compliance with environmental laws and regulations. We take 
our commitment to protecting the men, women, and children living and 
working on our installations and the surrounding communities very 
seriously. A significant part of that commitment is protection of the 
waters of the United States.
    The Department of Defense already complies with the Clean Water 
Act. Our installations have long worked closely with the Federal, 
state, and local regulators to ensure that our facilities comply with 
the Federal Water Pollution Prevention Control Act (FWPCA), commonly 
known as the Clean Water Act. Our installations have permits, comply 
with discharge standards, and submit regular monitoring reports, just 
like any other entity subject to the Clean Water Act. In addition, we 
are subject to enforcement actions and compliance agreements, like any 
other entity subject to the Clean Water Act.
    We are not above the law. The Department of Defense abides by the 
same standards and regulations as states, local governments, and the 
private sector. We have been complying for decades.
    The Department has almost 1,900 Clean Water permits throughout the 
United States. These permits cover domestic wastewater, industrial 
wastewater, and storm water. In addition, some of our installations 
discharge wastewater to municipalities and cities. In Fiscal Year 2000, 
the Department will invest $215 million in upgrading and replacing 
wastewater treatment infrastructure. On top of these investments, the 
Department spends millions of dollars each year complying with the day-
to-day requirements of these permits operating treatment plants, 
sampling the water, repairing and maintaining of the plants, submitting 
regular monitoring reports to the regulators, etc.
    Our compliance record in the area of Clean Water is excellent. In 
1998, the Department received only 37 enforcement actions. 98 percent 
of our almost 1,900 permits were in compliance. This is significant. 
Most of these actions were administrative, such as paper work and late 
reporting. Still, we can do better. The Military Departments are making 
great strides to reduce enforcement actions and to reach a state of 
full and sustained compliance.
    Senate 669, Federal Facilities Clean Water Compliance Act of 1999
    The Department of Defense is committed to complying with all 
provisions of the Clean Water Act. In addition, the Department has 
supported a limited expansion of the waiver of sovereign immunity that 
would subject us to penalties for all Clean Water Act violations for 
which a private person would be liable. Whenever possible and 
consistent with our other statutory obligations, we should be held to 
the same standard as other private or public entities.
    The proposed bill tracks closely the language used in recent years 
to amend the Resource Conservation and Recovery Act and the Safe 
Drinking Water Act to expand the waiver of sovereign immunity. The 
Administration, including the Department of Defense, has supported both 
of these efforts.
    Although the Administration supports the goals of S. 669, we are 
concerned with one of the provisions the bill. This provision, in rare 
circumstances, could interfere with our ability to carry out critically 
important responsibilities in a manner protective of national security.
Presidential Exemption
    The proposed bill would eliminate the Presidential Exemption 
provision currently included in Section 313 of the Federal Water 
Pollution Control Act. This provision is carefully circumscribed and 
allows the President to exercise his authority only ``in the paramount 
interest of the United States.'' Similar provisions for exemption are 
found in:
      the Clean Air Act, 42 USC 7418;
      the Safe Drinking Water Act, 42 USC 300j-6;
      the Resource Conservation and Recovery Act, 42 USC 6961; 
and
      the Comprehensive Environmental Response, Compensation, 
and Liability Act, 42 USC 9620j.
    Historically, Presidents have used these provisions infrequently, 
and the standard required is difficult to meet. These exemptions are 
essential tools to ensure that the President has the flexibility he 
needs to act quickly and decisively to protect the national interests 
when strict compliance with these environmental laws would jeopardize 
the overall interests of the United States. The Presidential Exemption 
has not been abused.
    In fact, the use of the Presidential Exemption can protect our 
waters. This exemption has only been used twice. In October 1980, 
President Carter directed the Department of Defense to rapidly 
construct housing for the Haitian refugees at Ft. Allen in Puerto Rico. 
An integral part of this housing was a system to collect and treat 
wastewater. Because the process of obtaining a permit would not allow 
us to meet the pressing needs of the Haitian refugees in a timely 
manner, President Carter issued an exemption to the permitting aspects 
of the Clean Water Act in this specific situation. President Reagan 
renewed the Exemption for another year in October 1981. The result was 
that we were able to protect the health of the Haitian refugees. Had we 
not been able to invoke this Presidential Exemption, the collection and 
treatment of the wastewater would not have been possible.
    The Administration opposes the elimination of the Presidential 
Exemption provision.
Comprehensive Environmental Response, Compensation and Liability Act 
        Implications
    The Department, with the support of the Administration, has 
consistently opposed efforts to change the waiver of sovereign immunity 
in the Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA). Given that strong opposition, the question arises why the 
Department can support the changes in the waiver proposed in Senate 
669. So you can clearly understand why the Department of Defense has 
differing positions on waiver of sovereign immunity for these two Acts, 
I would like to clarify the differences and explain our rationale for 
opposing the waiver under CERCLA.
    Compliance with Environmental Requirements under CERCLA
    You may have heard the allegation that the Federal Government does 
not comply with environmental laws to the same extent as private 
parties. The truth is that the Department of Defense already complies 
with environmental laws to the same extent as private parties 
conducting a cleanup under CERCLA. CERCLA already requires the Federal 
Government to cleanup to state standards. The Department of Defense 
follows the procedural requirements of CERCLA and complies with the 
substantive requirements of state and Federal environmental laws and 
regulations. This means that the Department follows the process 
prescribed by the Environmental Protection Agency for CERCLA and that 
we meet all the applicable or relevant and appropriate requirements 
(ARARs) in state and Federal laws. CERCLA exempts all parties from many 
purely procedural requirements of other state and Federal laws, such as 
the requirement to obtain permits. This is to speed up the process so 
that cleanups can be implemented as quickly as possible.
CERCLA is Different from Other Environmental Regulations
    Some may perceive that because we support a waiver of sovereign 
immunity for the Federal Water Pollution Control Act, but do not 
support an amendment to the current waiver of sovereign immunity in 
CERCLA that we are being inconsistent. This is far from the case for 
two important reasons. One there already is a waiver of sovereign 
immunity in CERCLA, which we believe works very well. The current 
waiver encourages the Department of Defense and states to reach 
consensus on disputed issues at the negotiating table rather than 
resorting to litigation. The negotiation process has worked to change 
planned cleanups, without increasing the costs of those cleanups by 
orders of magnitude as, on occasion, a state has sought. Second, CERCLA 
addresses a different type of situation than the other regulations 
where the Department supports waivers of sovereign immunity. Our job is 
to determine what contamination is present, if it presents a threat and 
then to take appropriate action. The Department of Defense is required 
by provisions of Title 10 to follow the CERCLA process at all of our 
sites, whether they are on the National Priorities List or not. The 
Clean Water Act is prospective and seeks to control or limit pollution 
from occurring. Waiting for approval of a new water permit discharge 
permit should not impact public health or the environment, because the 
discharge cannot occur until the permit is approved. However, at CERCLA 
sites, the contamination already at the site can spread during the wait 
with the potential for impacting public health and the environment and 
increasing costs significantly. Similarly, imposing other processes 
under state law to cleanup actions required by Federal law to be 
performed under CERCLA would slow down the cleanup process, and create 
duplication of effort and confusion.
    The Department of Defense believes that a waiver of sovereign 
immunity for the Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA) modeled after the Federal Facility Compliance 
Act of 1992 (FFCA) is inappropriate. For a more complete discussion, we 
will be pleased to provide a copy of a Report to Congress on the 
Potential Impacts of the Proposed Amendment to the CERCLA Waiver of 
Sovereign Immunity we prepared with the Department of Energy in 
February of this year.
                               conclusion
    In summary, the Department supports almost all of the entire bill. 
However, we believe the bill should be amended to retain a Presidential 
Exemption provision in the present law.
    We would be happy to meet with your staff to discuss our concerns 
with this proposed bill.
    Thank you.
                               __________
        Statement of Judge Helen Walker, Victoria County, Texas
    Chairman Chafee and other distinguished Senators, I am Helen 
Walker, Victoria County Judge, in Victoria Texas and co-chair of the 
Texas Counties Storm Water Coalition which currently represents 115 
counties in Texas. The Coalition was formed in early 1998 because of 
the concern Texas counties had with the burden of the Phase II rules 
and the ability to comply with many of the regulations.
    I am here today to voice our concerns with the EPA proposed Storm 
Water Phase II rules and to explain why this is not a manageable rule. 
Although I am from Texas, this is not solely a Texas problem. Counties 
in your home states will also be severely impacted by these rules.
    As you are aware EPA, initially proposed Phase II in January 1998 
to regulate two types of storm water discharges: (1) those from small 
municipal separate storm sewer systems and (2) those associated with 
construction activities that disturb between one and five acres of 
land.
    The EPA has made population the basis for the Phase II regulatory 
scheme, which means that ``urbanized'' areas (as defined by the census) 
will be covered by the rule whether or not they present any water 
quality concerns. In the proposed rules EPA automatically identifies 38 
counties in Texas as owners and operators of small municipal separate 
storm sewer systems (MS4s) based on this population definition. We 
anticipate that 10 more counties, in Texas, will meet the ``urbanized'' 
definition after the 2000 census. Several of these counties are in West 
Texas, which is very arid and receives little precipitation. However, 
because the rule is based on population and not water quality, these 
arid counties will be required to administer the same type of program 
as those entities which might truly have water quality impairments.
    In these approximately 48 Texas counties, roadside vegetated 
ditches will be considered MS4s under EPA's current definitions. 
Counties and cities with identified MS4s will be required to enact 
ordinances and enforce those ordinances to comply with the six minimum 
control measures, required for MS4s entities. Counties in Texas as well 
in many other states lack the authority to enact these ordinances and 
implement all of the regulatory requirements that Phase II requires. 
Further, these vegetated ditches serve as a natural treatment system 
and should not be considered an MS4.
    The proposed rule does provide for co-permitting among entities. In 
Texas we can see this as a real advantage. Since the ``urbanized'' area 
is not the entire county, but a donut around the city, co-permitting 
could be advantageous to the city and the county. The city in many 
areas has the capability to meet all the necessary permit requirements 
and therefore, the county, which does not, would be interested in co-
permitting. The problem with the proposed rule is that liability for 
noncompliance remains with all entities. For example, if a county 
contracts with the city to co-permit and the city obtains the permit 
and has agreed to comply with all necessary Best Management Practices 
requirements, but the city fails to do so, the liability remains with 
both the city and the county. In this instance the county relied on the 
city to administer the program, but could be subjected to fines and 
penalties along with the city.
    All 254 counties in Texas as well as counties in other states with 
the responsibility of road construction and maintenance of county roads 
will be impacted by the construction provision of the rule. As the rule 
is proposed counties would be required to obtain permits for a 
multitude of core county activities, such as routine road maintenance, 
drainage ditch clearance, and pothole repair. In Texas alone there are 
thousands of county road miles. An acre threshold is not very large and 
would include almost every county road project. Many of these roads are 
gravel roads and again many of these counties are located in arid areas 
of the state Mat receive little rain. They would be required to obtain 
the permits and comply with the requirements regardless of the water 
quality impacts.
    Senator Hutchison has filed legislation, which addresses many of 
our concerns. S. 1706 would:
    1) Exclude from consideration as regulated MS4s, the thousands of 
miles of vegetated county road ditches which already serve as a natural 
treatment system and should not be covered by the Clean Water Act;
    2) eliminate permitting of construction sites less than five acres; 
EPA chose the five acre threshold for permitting under the Phase I 
regulation.
    3) exclude routine road maintenance from being considered as a 
construction activity;
    4) protect counties from liability for not complying with Phase II 
regulations that require actions exceeding the authority vested in 
counties under State law. (Many counties across the Nation do not have 
ordinance making or enforcement authority); and
    5) enhance the ability of counties to rely on another governmental 
entity's implementation of MS4 measures by protecting counties from 
liability if the implementing entity fails to comply with Phase II.
    As a local elected official I know better than most that clean 
water is a precious commodity. Clean Water is the key to a successful 
community and that is why Congress in its wisdom passed the Clean Water 
Act. However, we believe that this proposed rule goes well beyond the 
Act and is not aimed at truly improving water quality. If it was, then 
it would be based on areas -with water quality problems, instead of 
being based on population thresholds. The EPA has opted to paint with a 
broad brush and in loose language that assumes that everyone is the 
same. Everyone is not the same. Cities and counties across the Nation 
have different regulatory and statutory authorities.
    I am certain there are areas of the country that have severe water 
quality problems. Accordingly, those areas should be singled out with a 
proven solution to address those problems. We believe that these rules 
are based largely on assumptions. The rule assumes that if you have a 
population of 50,000 you must have water quality problems; it assumes 
that if you are involved in a construction activity of one acre you 
must be contributing to water quality problems. These assumptions are 
evident because EPA is issuing a Phase II rule without ever analyzing 
the Phase I data. The Phase I rule was issued in the early 1990's and 
applied to large cities of 100,000 or more as well as large industrial 
sites. Was Phase I program successful in improving water quality? This 
question has not been answered with any proven data other than the 
assumption that if you have a program it must work.
    Senator Hutchison's bill takes a logical approach at correcting the 
broad brush approach. We believe that if this legislation is passed, it 
will help local governments throughout the nation. This is an 
opportunity for Congress to make clear to EPA the intent of the Clean 
Water Act and to further the goal of cleaning up our water.
    Again, I thank you for this opportunity and will be glad to answer 
any questions.
                               __________
     Statement of Doug Harrison, General Manager/Secretary, Fresno 
                  Metropolitan Flood Control District
    On behalf of the National Association of Flood and Stormwater 
Management Agencies, I am pleased to submit testimony on the Water 
Regulation Improvement Act of 1999, introduced by Senators Hutchinson 
and Gramm. NAFSMA represents more than 100 flood control and stormwater 
management agencies serving a total population of more than 76 million 
citizens. Many of our members are participants in the Phase I NPDES 
Stormwater program and also administer water resources projects with 
the Corps of Engineers and work closely with the Federal Emergency 
Management Agency, as well as participating in the National Flood 
Insurance Program. NAFSMA also served on the Federal Advisory Committee 
convened to help design the Phase II Stormwater Program and 
participated on the Urban Wet Weather Federal Advisory Committee.
    NAFSMA's membership includes public agencies whose function is the 
protection of lives, property and economic activity from the adverse 
impacts of storm and flood waters. As a national association whose 
mission is to advocate public policy, encourage technologies and 
conduct education programs to facilitate and enhance the achievement of 
the public service functions of its members, NAFSMA appreciates the 
Committee's attention to the stormwater issue and looks forward to 
continued work with you on this important priority.
Background on the Stormwater Issue
    In adopting the Clean Water Act Amendments in 1987, Congress 
clearly recognized the differences between stormwater and wastewater 
discharges and required stormwater permitters to reduce the discharge 
of pollutants in urban stormwater to the ``maximum extent practicable'' 
or ``MEP.'' It is the MEP standard and best management practice 
approach that drive the Federal stormwater program.
    A requirement to include numeric effluent limits in NPDES 
stormwater permits has been alleged by various environmental groups. In 
a suit against five public agencies in Arizona responsible for 
administering the stormwater program, the Ninth Circuit Court upheld 
the Arizona permits and rejected the position of both petitioners, the 
Defenders of Wildlife and the Sierra Club that the Clean Water Act 
 402(p) is ambiguous and that compliance with water quality 
standards is required for municipal stormwater permits. NAFSMA joined 
the National League of Cities, the National Association of Counties, 
the American Public Works Association and the Association of 
Metropolitan Sewerage Agencies in filing as amici curiae in support of 
the Arizona permitters in this case.
    Although the decision was favorable on the water quality standards 
issue, such litigation needlessly ties up local staff and resources 
that could otherwise be directed to stormwater management activities. 
We urge Congress to clarify its intent to recognize that municipal 
stormwater systems and the related NPDES permits are not adaptable to 
traditional NPDES requirements and that the goal of improved water 
quality is to be achieved through municipal stormwater management 
programs, not the application of nonachievable, nonpracticable numeric 
limits. Even the U.S. Environmental Protection Agency in the interim 
guidance for the Phase I stormwater program issued in the summer of 
1997 clearly states that numeric limits are not necessary or 
appropriate in NPDES stormwater permits.
    Our members with NPDES permits have also had to face citizen suits 
for failing to meet water quality standards, which in most cases are 
technologically unattainable. A number of our members are also facing 
legal action over the imposition of stormwater utility fees, which for 
many localities is the only approach available for funding their 
stormwater activities. In Cincinnati, Ohio, the Federal Government's 
National Institute of Occupational Safety and Health facility refused 
to pay the local stormwater fee and at least one other Federal agency 
in the area has also expressed its intent not to pay the municipal 
stormwater fee.
Additional Research on Water Quality Impacts on Phase I is Needed
    NAFSMA is encouraged by language currently attached to the VA-HUD 
Independent Agencies Appropriations bill that calls on the U.S. 
Environmental Protection Agency to report to Congress on the actual 
water quality gains brought about nationwide as a result of the Phase I 
NPDES stormwater program. However, in order for Congress to clearly see 
the stormwater Phase I impact, we urge that the report examine both the 
costs and benefits of the Phase I program to date. We also support the 
request that EPA report to Congress on the successful and unsuccessful 
best management practices that have been used in the NPDES stormwater 
program to date.
    The lack of research on the impacts of the Phase I stormwater 
program has long been an issue for NAFSMA members. A few years back, 
NAFSMA surveyed communities over 100,000 in population to determine the 
average amount spent at the local level on NPDES stormwater permits. We 
reported to Congress and U.S. EPA at that time that our individual 
members had expended on average $650,000 per community on the 
application process alone.
    In a recent survey of Phase II communities undertaken by NAFSMA, 
nearly 75 percent of the respondent communities indicated that they do 
not currently have a public education or outreach program on stormwater 
and 46 percent of the respondents do not currently spend money on any 
of the stormwater activities identified in the survey. It is also 
significant to note that 39 percent of the respondent communities 
believe they will need to hire a consultant to assist them in preparing 
the application. The 54 percent of Phase II communities that currently 
fund stormwater programs or activities spend upwards of $4,000 per 
square mile or on an average of $2.76 per capita on these programs. It 
is clear that the economic impacts of the Phase II program will be 
significant.
S. 1706--Water Regulation Improvement Act
    NAFSMA commends the committee for looking at ways to improve the 
Federal stormwater program and the Phase II regulation. However, it is 
important to note that S. 1706 only gets to the tip of the iceberg. The 
problems with the stormwater regulation are not limited to Phase II, 
but include the Phase I program as well. Problems such as the potential 
inclusion of numeric effluent limits in NPDES stormwater permits have 
critical national impacts and should be considered by the committee as 
part of legislation to improve the Federal stormwater regulation. The 
lack of research on the impacts of Phase I, both cost and benefits, is 
another issue that merits national attention.
    Also looming are the impacts of current regulatory proposals such 
as Total Maximum Daily Loads (TMDLs), a tool for attaining water 
quality standards, and the parallel NPDES regulation that modifies the 
antidegradation rule. NAFSMA appreciates the committee's efforts to 
provide additional time for review of these regulations as well as 
scheduling an oversight hearing on the proposal. The impacts of the 
proposed TMDL and antidegradation rule on NPDES stormwater permit 
holders throughout the country (whether Phase I or Phase II) will be 
great and we appreciate your attention on this issue. We also urge that 
even more attention be given and a thorough review the impacts of this 
program be carried out over the upcoming months.
    The inadequacy of funding for wet weather programs is also an 
extremely important issues. There has been very little Federal funding 
provided to implement the Federal stormwater program. The regulatory 
requirements have continued to grow while funding to carry out these 
wet weather activities has been reduced. Congress needs to look at 
providing adequate resources to conduct the requisite research, 
demonstration projects and to implement the national environmental 
mandates.
    The most recent estimates of the costs of compliance with Clean 
Water Act mandates are staggering--more than $330 billion over the next 
20 years. No locality, no matter how large, how well off, or how 
committed--can find or generate the resources required to finance needs 
of this magnitude. This estimate does not include anticipated mandates 
to meet TMDLs, which has the potential to require extraordinarily 
costly or unattainable reductions of pollutants from municipalities 
and/or industry, further straining limited resources.
S. 1706--Section 2. Waiver of Liability of Co-Permittees
    NAFSMA supports protection for a co-permittee in compliance with 
their NPDES stormwater permit from liability for the failure of another 
co-permittee or other governmental entity to implement a specific 
control measure required under the NPDES permit. NAFSMA also supports 
and urges protection for NPDES stormwater permit holders who are in 
compliance with their NPDES permits from citizen suits for failure to 
meet water quality standards.
Vegetated Road Ditches
    NAFSMA understands this provision to exclude vegetated road ditches 
in rural areas from NPDES Phase II requirements. This language could be 
clarified to ensure that the exemption does not apply to those Phase II 
MS4s that are located in urbanized areas, which are automatically 
designated for Phase II regulations. Many communities around the 
country have expressed concerns that the donut holes (currently 
unregulated small cities surrounded by Phase I cities) need to be 
brought into the Federal stormwater program since these currently 
excluded cities have similar discharges and frequently impact the Phase 
I city's stormwater system and stormwater quality program efforts.
    Of central importance is not the structural nature of the 
stormwater conveyance, but the quality of the waters flowing therein 
and their point of disposal. (Discharges which do not reach waters of 
the United States are already exempted.) This point well supports the 
need for stormwater systems to be seen as more typically non-point 
sources requiring a reasonable watershed based approach.
Construction Activities and Routine Road Maintenance
    NAFSMA and other organizations involved with the Stormwater Phase 
II Federal Advisory Committee were concerned with the reduction from 
the five acres requirement down to one acre in the proposed Phase II 
regulation. This change will greatly increase the workload on the 
permitting agencies, be it either the states or U.S. EPA and will 
probably result in significant stormwater permitting delays. NAFSMA 
proposed during the Phase II FACA process that construction sites below 
5 acres not be included in the regulatory framework unless sensitive 
resource waters were at risk.
    NAFSMA also wishes to highlight its concern as to the current and 
proposed Federal regulation of routine local stormwater system 
maintenance issues. The regulatory burden on state and local government 
agencies to carry out their routine maintenance activities has 
intensified in recent years and has created a public safety threat in 
many cases. Our members have experienced great delays in carrying out 
routine maintenance not only because of NPDES requirements, but because 
of Section 404 regulatory requirements implemented by the U.S. Army 
Corps of Engineers. The general regulatory move from environmental 
protection to environmental perfection has left our agencies unable to 
carry out their local maintenance responsibilities. In many cases it 
has taken months, and in some cases years of work, to obtain necessary 
Federal permits to carry out local maintenance activities due to 
section 7 consultations and water quality certification reviews that 
are required as part of the permitting process.
    NAFSMA recently commented on the Corps proposed nationwide permit 
regulations which have been designed to streamline the wetlands 
permitting program and we would be pleased to submit those comments as 
part of the record. The combined effect of the nationwide proposals 
will put many of our flood control activities into the individual 
permits. By adding restrictions such as limiting our flood control and 
stormwater management projects in the 100-year floodplain and reducing 
acreage limitations in the program, many of our public safety 
activities will now fall into the individual permitting process. NAFSMA 
therefore also urges the Committee to delay implementation of these new 
nationwide permits until some of these significant problems are 
addressed.
    We would be pleased to work with the Committee to provide language 
to address local exemptions for routine maintenance activities.
    We appreciate the opportunity to address the Committee and would be 
pleased to answer any questions at this time.
                               __________
    Testimony of Steve Fleischli, Executive Director, Santa Monica 
                               BayKeeper
Introduction
    Good morning Members of the Committee. My name is Steve Fleischli. 
I am the Executive Director of the Santa Monica BayKeeper, a non-profit 
organization dedicated to the protection of Santa Monica and San Pedro 
Bays near Los Angeles, California. Thank you for the opportunity to be 
here to discuss important issues addressing national water quality.
    The good news is that over the last 27 years water quality across 
the Nation has improved because of the adoption of the Federal Water 
Pollution Control Act. At the time of the Act's adoption, nearly two-
thirds of the nations waters failed to meet their intended beneficial 
uses. This number has been reduced because national efforts to reduce 
pollution from sewage treatment plants and large industrial facilities. 
Meanwhile, however, more diffuse sources, such as runoff from 
municipalities and construction sites, have remained a significant 
source of pollution.
The Current Problem
    Today nearly 40 percent of the nations waters still do not meet the 
objectives of the Act. These polluted waters not only present a public 
health problem, but also contribute to economic losses and threaten 
important aquatic habitat. In Los Angeles and Ventura Counties alone, 
more than 156 rivers, beaches and lakes do not meet the objectives of 
the Clean Water Act.
    According to the Natural Resources Defense Council, during 1998, 
there were at least 7,236 days of closings and advisories nationwide. 
Polluted runoff and stormwater--accounting for more than 1,541 
closings/advisories plus 8 extended closings and 10 permanent.
    Rain or preemptive closings accounted for more than 1,110 closings/
advisories.
    Almost every coastal and Great Lakes state reported having at least 
one beach where stormwater was a known source of pollution at or near 
bathing beaches. New Jersey, California, Florida, and Connecticut are 
among the states that reported having numerous beaches where stormwater 
is a known pollution source.
    With tourist expenditures in just portions of only 10 coastal 
states total over $77 billion, the impacts from this type of pollution 
are far too real.
    For example, in Huntington Beach, California--one of California's 
most popular surfing areas--beaches were closed much of this summer. 
One suspect was a construction site where dredging material was 
illegally discharged to a storm drain. Unfortunately, the source of the 
problems has not been identified and local businesses suffer to the 
tune of millions of dollars in lost revenues.
    Meanwhile, as beaches are closed, many lakes and streams are also 
impaired because of excessive sediment and nutrient loading and metal 
deposition.
    Sediment can smother fish larvae. Sediment loading can obscure 
sunlight that is necessary for aquatic vegetation growth, upon which 
fish and other species depend. Sediments can also act as the transport 
mechanism for harmful pollutants such as nutrients or heavy metals.
    These nutrients can contribute to algal blooms, the decomposition 
of which requires extensive amounts of dissolved oxygen. This often 
depletes dissolved oxygen levels for other aquatic life in coastal 
waters. In recent years, a number of coastal waters and their 
tributaries have experienced frequent hypoxic (low dissolved oxygen 
levels) and occasional apoxic (no dissolved oxygen levels) conditions 
leading to massive fish kills. It is also believed that excessive 
nutrients can trigger outbreaks of the toxic microbe Pfiesteria 
piscicida.
    Finally, Heavy metals can also create toxic conditions for juvenile 
as well as adult organisms, and present threats to those who consume 
them.
What's Presently Being Done
    While some problems still exist at sewage treatment plants and 
large industrial facilities, it is now widely accepted that storm water 
and non-point source pollution is the No. 1 threat to water quality 
across the country. These sources were essentially left unregulated for 
decades because of, as one Federal court put it, perceived 
``administrative infeasibility.''
    Fortunately, in 1987 the Clean Water Act was amended to include 
certain provisions designed to reduce or eliminate pollution from 
various classes of storm water. This includes pollution from 
municipalities as well as industrial activities, including construction 
activities. In many cities and states, permits have been in effect for 
years. In other areas, these permits are just being considered, with 
EPA slated to issue new regulations this fall.
    As part of the proposed regulations for Phase II storm water 
control, EPA has once again concluded that ``storm water from a variety 
of sources including separate storm sewers, construction sites, waste 
disposal and resource extraction are major causes of water quality 
impairments.]'' 63 Fed. Reg. 1356 (January 9, 1998).
What Needs to Occur
    In the environmental community, many of us agree that our waters 
are dying a death of a thousand cuts. Something must be done.
    Many areas of the Clean Water Act clearly state that the goal of 
the Act is to achieve water quality standards, and to have fishable 
swimmable waters across the country. In the end, the Act's goal is to 
eliminate the discharge of pollutants to waters of the United States. 
Unfortunately, the Clean Water Act's storm water provisions, as 
presently written, leave much room for debate, and thus, allow 
municipalities to escape responsibility for violations of water quality 
standards. In Los Angeles, for example, many municipalities subject to 
the Act have managed to evade responsibility because of weak provisions 
in the law and poor implementation. Too much time is taken developing 
plans and strategies which lose focus on the overall objectives of 
cleaning local waters through the achievement of water quality 
standards.
    What makes the most sense is for the Federal Government to move 
forward and set the overall goal that is desired--i.e. protection of 
beneficial uses. This should be accomplished through the mandatory 
setting of meaningful numeric limits for all discharges--which would 
guarantee that everyone knows what is expected.
    What is being proposed today with S. 1706, however, falls far short 
of this need.
    Among other things, this bill proposes to eliminate the requirement 
that construction sites less than five acres be subject to a storm 
water permit.
    This comes despite the fact that EPA has recognized that 
``[c]onstruction sites can pollute with soils sediments, phosphorous, 
nitrogen, nutrients from fertilizers, pesticides, petroleum products, 
construction chemicals and solid wastes.'' Natural Resources Defense 
Council v. EPA, 966 F.2d 1292,1305 (June 4,1992), citing 55 Fed. Reg. 
at 48,033. EPA has also long recognized that ``[o]ver a short period of 
time, construction sites can contribute more sediment to streams than 
was previously deposited over several decades.'' NRDC v. EPA, at 1306, 
citing 55 Fed. Reg. at 48,033.
    Indeed, short term loadings may have shock loading effects on 
receiving water, such as low dissolved oxygen. See, 63 Fed. Reg.1539 
(January 9,1998). It is also acknowledged that ``erosion rates from 
construction sites are much greater than from almost any other land 
use. `` Id. at 1540. Numerous scientific studies support this 
conclusion. These sites can threaten drinking water supplies, increase 
the need for dredging of coastal sediments for navigation, damage 
habitat of fish and aquatic species, and even lead to the destruction 
of coral reefs.
    Further, the Ninth Circuit Court of Appeal found that the concept 
that a less than five acre exemption is ``de minimum'' is contradicted 
by [EPA's] admission that even small construction sites can have a 
significant impact on local water quality.'' NRDC v. EPA, at 1306. 
Evidence also suggests that in some areas of the country there may be 
as many as five times as many construction sites smaller than five 
acres for every site larger than five acres. See, 63 Fed. Reg. at 1542.
    Based on this information, it makes little sense for Congress to 
now back off this requirement, and, in essence, reduce the 
effectiveness of the 1987 Amendments. To do so will only serve to 
worsen water quality, rather than improve it.
    The proposed exemption under S.1706 of vegetated road ditches 
creates a similar situation. This type of blanket exemption fails to 
recognize that even vegetated drainage ways can convey storm water 
pollution, the same as a concrete channel or a river. Moreover, many 
drainage ways are operated in ``connection with'' a road or street. 
Arguably, this proposal could allow the exemption of miles upon miles 
of polluted storm water conveyance systems. Again, the overall 
objective of the Act should remain the protection of water quality.
    Finally, this bill also attempts to exempt from storm water 
requirements liability for municipalities which contribute to 
violations of water quality standards. The bill does so under the guise 
of one co-permittees ``reliance'' upon other co-permittees to act. This 
is entirely unworkable as it will simply create a scenario wherein one 
City will point its finger at another, while the other will simply 
point right back. Municipalities will then argue about who is 
``causing'' the problem. Thus, no one will ever accept responsibility 
for the fact that water quality is impaired, leading to endless debate 
and an intentional diversion away from the true intent of the Act: that 
those who cause--or contribute to--the water quality problems are held 
accountable. Requiring otherwise is a direct attack on the Act's 
overall objective of improved water quality.
Conclusion
    Concerned citizens have worked for years for strong action to 
address the numerous sources of pollution that contribute to the 
impairment of our nation's waters. We don't want any more delays or 
rollbacks.
    For every person who says that storm water is an impossible problem 
to conquer, there is another person who is finding a way to get there. 
Technological development in this area is flourishing. There are simple 
technologies such as silt fences and sand bags, which, when properly 
used, help reduce or eliminate sediment loading from construction 
sites. Numerous different types of catch basin inserts are being 
developed. Storm drain treatment systems are being installed. New 
methods of landscape architecture are emerging. Scientists around the 
country have demonstrated the effectiveness of these developments in 
reducing contamination of our nation's waters.
    The Federal Government should move forward to set the standards to 
which everyone should be held accountable.
    The waters of the United States belong to everyone and to no one. 
As such, they must be protected in way that doesn't allow individuals, 
municipalities or corporations to jeopardize the well-being of these 
resources at the expense of the public trust.
                               __________
 Statement of Mary Rosewin Sweeney, Assistant Attorney General of the 
 State of Maryland, on Behalf of Attorney General J. Joseph Curran Jr.
    Mr. Chairman and members of the Committee, my name is Man Rosewin 
Sweeney and I am an Assistant Attorney General for the State of 
Maryland. I am here on behalf of Attorney General Joe Curran, a member 
of the National Association of Attorneys General, to testify in support 
of S. 669, a bill Mending the Federal Water Pollution Control Act to 
ensure compliance by Federal facilities with pollution control 
requirements.
    I would like to commend Senator Coverdell and the bill's co-
sponsors for their attention to this issue The waiver of sovereign 
immunity has been a key issue for NAAG for many years and the Attorneys 
General adopted a resolution supporting the waiver of Federal sovereign 
immunity under the Clean Water Act in 1993. A copy of that resolution 
is attached to my testimony.
    The Attorneys General support this bill for the same reasons that 
they supported similar legislation in 1993. First, there is a need to 
provide clear authority to Federal, states and local officials for the 
enforcement of water pollution laws at Federal facilities. Second, 
Federal agencies and facilities should be subject to He same 
accountability, reasonable service charges, and procedural and 
substantive enforcement provisions that apply to state and local 
governments and private industry. Third, the passage of this 
legislation will enhance water pollution control practices at Federal 
facilities in the future by requiring those facilities to comply with 
Federal, state, and local water pollution laws.
    Furthermore, this bill makes the waiver of sovereign immunity in Me 
Clean Was Act essentially the same as the waivers present!' contained 
in the Solid Waste Disposal Act, or RCRA, and in the Safe Drinking 
Water Act. The language of S. 669 differs in minor but appropriate 
respects from the waiver language contained in RCRA and the Safe 
Drinking Water Act. However, there is one difference in language that 
the Committee may wish to correct. That is to change paragraph 
(a)(3)(D) to make it clear that immunity is waived for judicially 
imposed penalties and fines as well as for those imposed in 
administrative proceedings. This change would make the Clean Water 
Act's waiver language more consistent with that of PCKA and the Safe 
Drinking Water Act and would avoid any confusion over whether the 
waiver of immunity for penalties or fines includes penalties and fines 
imposed by state courts.
    The State of Maryland's experience has been that the waiver of 
Sovereign immunity in RCRA and the Safe Drinking Water Act resulted in 
an improvement in Federal compliance under those laws in recent years. 
Federal compliance with the Clean Water Act has not seen a comparable 
improvement. Federal facilities in Maryland have been responsible for: 
overflows from wastewater treatment plants; unauthorized discharges of 
pollutants from laboratories, research facilities, hospitals, and 
military installations; thermal pollution; and the discharge of 
sediments from many construction sites. Because of sovereign immunity, 
these facilities were able to drag their feet when responding to the 
State's complaints about these water pollution problems The managers of 
some Federal facilities have refused to enter into agreements for 
corrective action with the State, not because the terms were 
unreasonable but because the managers feared that such an agreement 
reflected poorly on their performance. Maryland also encountered 
reluctance on the part of Federal agencies to take effective measures 
to control contractors that were causing pollution.
    If the Clean Water Act is amended as proposed in S. 669 and Federal 
facilities become subject to penalties for water pollution, Hey will be 
more likely to identify and promptly correct pollution problems. There 
is simply no reason for Federal facilities to continue to be held to a 
tower standard than private industry or state and local governments.
    I appreciate the opportunity to appear before the Con mitten and 
would be happy to respond to arty questions you might have.
                                 ______
                                 
               NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
        adopted--spring meeting march 28-30, 1993 washington, dc
    resolution urging the congress to clarify the wager of federal 
              sovereign immunity under the clean water act
    WHEREAS, a significant number of the most dangerous sources of 
water pollution in the United States that pose a significant threat to 
public health and the environment are located at Federal facilities; 
and
    WHEREAS, Federal facilities are among the worst violators of 
Federal and state water pollution laws; and
    WHEREAS, Executive Order 12088 requires all Federal agencies to 
comply with all applicable pollution control standards; and
    WHEREAS, the states have experienced significant problems in 
bringing Federal facilities into compliance with Federal and state 
water pollution laws because the Federal facilities refuse to 
acknowledge state regulatory authority over their facilities; and
    WHEREAS, disputes over state environmental authority at Federal 
facilities has caused costly, time-consuming and acrimonious litigation 
between the states and the Federal agencies; and
    WHEREAS, the U.S. Environmental Protection Agency's and the states' 
lack of clear enforcement authority has eroded the public confidence in 
the Federal Government's willingness and ability to address the serious 
water pollution problems at the Federal facilities; and
    WHEREAS, the states' role in enforcing Federal and state water 
pollution laws against recalcitrant Federal agencies has become more 
important because of the U.S. Department of Justice contention that the 
Constitution prohibits EPA from enforcing water pollution laws at 
Federal facilities and from imposing sanctions against Federal 
agencies; and
    WHEREAS, Federal agencies must be subject to the same sanctions as 
private industry, states, and local governments for violations of 
Federal and state water pollution laws to deter violations of and 
ensure compliance with these laws; and
    WHEREAS, the U.S. House of Representatives is considering H.R. 340, 
which would clarify the Federal sovereign immunity waiver under the 
Clean Water Act;
    NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF 
ATTORNEYS GENERAL:
    1) urges Congress to adopt H.R. 340 or similar legislation which 
would:
    a) provide clear authority to Federal, state and local officials, 
to enforce water pollution programs at Federal facilities;
    b) subject Federal agencies and Federal facilities to the same 
accountability, procedural, and substantive enforcement provisions and 
reasonable service charges that apply to state and local governments 
and private industry; and
    c) enhance proper water pollution control practices at Federal 
facilities in the future by ensuring that Federal agencies comply with 
Federal, state and local water pollution laws; and
    2) authorizes the NAAG Environment Legislative Subcommittee to 
represent the views of the Association on this matter before the 
Congress and Federal agencies.
    3) authorizes the Executive Director and General Counsel to 
transmit this resolution to the President and EPA Administrator Carol 
Browner and appropriate members of her staff; Secretary Les Aspin of 
the Department of Defense; Secretary Hazel O'Leary of the Department of 
Energy; Congress; and other interested associations.
                               __________
   Statement of Jan Lee, Executive Director, Oregon Water Resources 
                                Congress
         s. 188, water conservation and quality incentives act
Introduction
    Thank you for the opportunity to testify today. I am Jan Lee, 
Executive Director of the Oregon Water Resources Congress. OWRC 
represents water suppliers in Oregon, those who operator reservoirs and 
delivery systems for non-potable water. The majority of the water is 
for agricultural supply, but we also represent some cities, counties 
and ports who supply water for other than domestic or human 
consumption. Our association has represented water interests in Oregon 
since its formation in 1912. I am also Vice President of the Western 
Coalition of Arid States (WESTCAS).
Need for S. 188
    We strongly support S. 188 as an additional tool for enhancing 
water quality in Oregon. There are over 1300 Oregon stream segments 
listed on the 303(d) TMDL (total maximum daily load) exceedance list 
approved by EPA. The majority of these streams are listed based on the 
need to meet a lower temperature standard (64 degrees statewide) to 
protect cold-water fish habitat. A significant portion of Oregon 
streams are either listed under the Endangered Species Act (ESA) or are 
being considered for listing in the near future. With the convergence 
of the ESA and the CWA (Clean Water Act), the need to reduce water 
temperatures for habitat protection will be the focus of challenge to 
water suppliers and water users and to Oregon's future growth and 
economy.
    Oregon's 303(d) TMDL list for the year 1998:

    1,067 streams and rivers listed
    32 lakes listed
    1,168 stream segments listed
    A total of 13,892 stream miles, not including lakes

    The nation has witnessed success with the point-source program as 
the result of funding that has now exceeded $96 billion. We have not 
committed that level of funding toward reducing non-point sources for 
water pollution. If we can invest resources in reducing non-point 
sources in a similar fashion with the same kind of incentive programs, 
both point source and non-point source water users will benefit, as 
well as our prized Northwest fishery resource.
SRF Funding Capability
    Currently Oregon receives the following SRF (State Revolving Fund) 
moneys distributed by the Environmental Protection Agency (EPA).

    Clean Water State Revolving Fund, Oregon Department of 
Environmental
    Quality (water pollution control facilities)
    $12-15 million approximately annually
    Safe Drinking Water Revolving Loan Program, Oregon Health Division
    $12 million approximately annually

    Neither of these loan programs currently provide funding for local 
governments supplying agricultural water supply to participate at the 
state level and no loans have been granted for such purposes.
    The Clean Water State Revolving Fund provides money for wastewater 
facility infrastructure. While the Federal program may allow more 
flexibility, the state program does not accommodate the needs of local 
government borrowers who are not investing in wastewater 
infrastructure. If the legislation before the committee is passed, it 
will clearly indicate that conservation and water quality projects, in 
addition to municipal wastewater infrastructure, are projects for which 
SRF funding can be expended. This will then enable Oregon to draft 
rules that puts these projects on equal footing with infrastructure 
projects. With the passage of S. 188, innovative water quality projects 
can move forward through Oregon's loan program.
    There are requests totaling over $250 million for wastewater/sewer 
infrastructure projects. The longer term need identified by Oregon in 
1996 was approximately $1.63 billion by the year 2010. Since Oregon 
receives an average of about $13 million annually from EPA for the 
wastewater program, there is in essence a line that has formed that 
will require 2 decades to complete before any of the other projects are 
addressed.
    In the drinking water project program, there is currently $10.5 
million which has not been committed to projects in Oregon. Recently 
EPA sent a letter indicating the $10.5 million may be called back by 
EPA if not used. The state has the ability to move the $10.5 to the 
wastewater program but would only do that as the very last resort prior 
to EPA pulling the funding.
    These examples show that it is almost impossible at the state level 
to access SRF dollars for the additional Federal purposes (non-point 
source control) Congress originally designated, e.g., allowing for 
conservation and water quality projects other than those that represent 
project infrastructure dollars for wastewater or drinking water 
facilities.
Reduction of Non-Point Sources
    How are we reducing non-point sources in Oregon?
    First, placing water instream for fishery protection is a policy of 
the state and has been since 1987 when the Legislature enacted the 
instream water right law (ORS 537.332 to .360). In the same legislative 
session, the state also enacted the ``water conservation incentive 
program'' (ORS 537.455 to .500 as attached). This program allows water 
users to conserve water, dedicate 25 percent or more to instream 
benefits for fishery protection, water quality and recreation, while 
the conserver retains a portion of the conserved water to store to 
stabilize their own water supply or to apply to additional use.
    The transfer statutes generally also allow for the transfer of 
water to instream benefits. The state also provides a temporary leasing 
program to allow for beneficial uses instream on an annual basis (ORS 
537.348).
    In some circumstances, additional flow will reduce water 
temperature. Conservation projects that transition water delivery from 
open canals subject to evapotransportation water losses reap instream 
benefits when the delivery systems are piped and thus withdraw less 
water to deliver the same crop need. If there can be public investment 
in such projects, the public can receive a share of the benefit by 
receiving additional water flows instream.
    Many of my association's members are irrigation districts. 
Irrigation withdrawal is the second largest use of water in the state 
of Oregon. (Hydropower use is the largest beneficial use.) While our 
association does not support taking agricultural lands out of 
production, we do support conserving water that results in a new net 
supply made available. We have cooperated with the Bureau of 
Reclamation and other interested groups in developing water-
conservation projects which result in placing additional water 
instream. Several of these projects have been in Central Oregon, in the 
Deschutes Basin.
    The Oregon Water Trust is leasing and purchasing conserved water in 
small amounts to place instream in key sections of stream where water 
is needed for fishery migration and protection. The Trust has been in 
place since the late 1980's and has acquired over 300 leases and a 
limited number of permanent water right transactions for instream 
benefit.
Other Tools
    We believe that the language of this bill will also provide the 
opportunity to develop other kinds of water-quality related projects 
that will benefit water users and instream needs.
    Conservation practices that result in less runoff to streams, that 
minimize discharges to streams, could be funded under this program.
Flexibility for the State Operated SRF Programs
    By providing language to make it clear that conservation and water 
quality projects for other than drinking water and wastewater 
infrastructure were intended by the law to be funded from SRF moneys, 
the states would be provided the flexibility to use SRF funding for a 
mix of projects.
Coalition of Interests
    We have worked with Senator Wyden's office on this legislation with 
the Environmental Defense Fund and the American Farm Bureau Federation. 
The Oregon Farm Bureau supports this legislation. Mr. Pete Test of the 
Oregon Farm Bureau asked me to include his support in my remarks to you 
today. Our association in Oregon has worked closely with Zach Willey of 
the Environmental Defense Fund, Northwest Headquarters in Bend, Oregon, 
and with the Oregon Farm Bureau and our own local government members to 
effect conservation projects in Oregon. This legislation will enhance 
those opportunities by providing a funding resource. We strongly urge 
your passage of S. 188 to achieve those goals.

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