```

[Senate Hearing 106-971]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-971

      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

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

                                HEARINGS

                               BEFORE THE

                      SUBCOMMITTEE ON FISHERIES, 
                          WILDLIFE, AND WATER

                                AND THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

TO CONSIDER S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000, 
    AND TO OVERSEE WATER REGULATIONS PROPOSED BY THE ENVIRONMENTAL 
PROTECTION AGENCY CONCERNING TOTAL MAXIMUM DAILY LOAD (TMDL) LEVELS AND 
                             NPDES PERMITS

                          MARCH 1 AND 23, 2000
                 MAY 6, 2000--WHITEFIELD, NEW HAMPSHIRE
                              MAY 18, 2000
                  JUNE 12, 2000--HOT SPRINGS, ARKANSAS

                               __________

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

                   U.S. GOVERNMENT PRINTING OFFICE
66-381                     WASHINGTON : 2001

_______________________________________________________________________
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED SIXTH CONGRESS
                             second session
                   BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming                FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri        HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho              JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah              BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas          RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
                      Dave Conover, Staff Director
                  Tom Sliter, Minority Staff Director
                                 ------                                

        Subcommittee on Fisheries, Wildlife, and Drinking Water

                   MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia             RON WYDEN, Oregon
ROBERT F. BENNETT, Utah              BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page

                             MARCH 1, 2000
                   FEDERAL REVIEW OF TMDL REGULATIONS
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana......... 6, 60
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1
Graham, Hon. Bob, U.S. Senator from the State of Florida.........   143
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....    17
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    23
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........     4

                               WITNESSES

Adams, Jamie Clover, Secretary of the Kansas Department of 
  Agriculture, on behalf of the National Association of State 
  Departments of Agriculture.....................................    41
    Prepared statement...........................................    94
Archey, Warren E., Massachusetts State Forester, chief of the 
  Massachusetts Bureau of Forestry, and chair of the NASF Water 
  Resources Committee............................................    45
    Prepared statement...........................................   123
    Statement, NASF Forestry Initiative..........................   127
Fox, J. Charles, Assistant Administrator for Water, Environmental 
  Protection Agency..............................................    16
    Prepared statement...........................................    84
Holm, David, president, Association of State and Interstate Water 
  Pollution Control Administrators...............................    43
    Comments, TMDL Rule.........................................102-115
    Prepared statement...........................................    97
    Statements, Association of State and Interstate Water 
      Pollution Control Administrators.................102-115, 115-123
Nielsen, William, council president, Eau Claire, WI, on Behalf of 
  the National League of Cities..................................    39
    Prepared statement...........................................    90
Parrish, Richard A., Southern Environmental Law Center...........    47
    Prepared statement...........................................   129
Racicot, Hon. Marc, Governor, State of Montana...................     7
    Letters to EPA...............................................65, 79
    Prepared statement...........................................    61
Smith, Hon. Gordon, U.S. Senator from the State of Oregon........   144

                          ADDITIONAL MATERIAL

Comments, Proposed Revisions to TMDLs, from the State 66-78, 79-83, 117
Letters:
    Governor of Montana, Marc Racicot............................    65
    Montana Department of Environmental Quality..................    79
Statements:
    American Society of Civil Engineers..........................   132
    Association of State and Interstate Water Pollution Control 
      Administrators...........................................102, 115
    Interstate Council on Water Policy...........................   139
    National Association of Flood and Stormwater Management 
      Agencies.................................................127, 140
                                 ------                                

                             MARCH 23, 2000
                          IMPACT ON THE STATES
                           OPENING STATEMENTS

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   147
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....   187
    Letters submitted for the record............................188-221
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........   148

                               WITNESSES

Bell, Nina, executive director, Northwest Environmental 
  Advocates, Portland, OR........................................   172
    Prepared statement...........................................   269
Buccino, Sharon, senior attorney, Natural Resources Defense 
  Council, Washington, DC........................................   225
    Prepared statement...........................................   311
Cloonan, Joan M., vice president, Environment and Regulatory 
  Affairs, J.R. Simplot Company Food Group, Boise, ID............   222
    Prepared statement...........................................   291
Gorton, Hon. Slade, U.S. Senator from the State of Washington....   244
Guerrero, Peter, Director, Environmental Protection Issues, 
  General Accounting Office......................................   158
    Prepared statement...........................................   246
Hutchison, Hon. Tim, U.S. Senator from the State of Arkansas.....   150
    Prepared statement...........................................   241
LeBlanc, Norman E., chief of Technical Services, Hampton Roads 
  Sanitation Districts, Virginia Beach, VA.......................   175
    Prepared statement...........................................   286
Lincoln, Hon. Blanche Lambert, U.S. Senator from the State of 
  Arkansas.......................................................   152
    Prepared statement...........................................   242
Moore, Dina J., National Cattlemen's Beef Association, Kneeland, 
  CA.............................................................   229
    Prepared statement...........................................   328
Olszewski, Robert J., director of Environmental Affairs, The 
  Timber Company, Atlanta, GA....................................   227
    Prepared statement...........................................   324
Pardue, W. Jeffrey, director, Environmental Services, Florida 
  Power Corporation, St. Petersburg, FL..........................   173
    Prepared statement...........................................   278
Skolasinski, David, District Manager, Environmental Affairs, 
  Cliffs Mining Services Company, Duluth, MN, on behalf of the 
  National Mining Association and the Iron Mining Association of 
  Minnesota......................................................   171
    Prepared statement...........................................   265
Smith, Hon. Gordon, U.S. Senator from the State of Oregon........   155
    Prepared statement...........................................   244
Thomson, Thomas N., Thomson Family Tree Farm, Orford, NH.........   223
    Prepared statement.........................................213, 293
Wittman, Robert J., supervisor, Westmoreland County, Montross, 
  VA, Virginia and Maryland Associations of Municipal Wastewater 
  Agencies and the Rappahannock River Basin Commission...........   168
    Prepared statement...........................................   259

                          ADDITIONAL MATERIAL

Article, Tree Farms Tally Ice Damage.............................   300
Comments:
    Sundry water organizations.................................301, 320
    Virginia Association of Municipal Waste Water Agencies.......   262
Letters:
    Bass, Hon. Charles, U.S. Representative from the State of New 
      Hampshire..................................................   190
    Bex, James M.................................................   194
    Black, Rodman R..............................................   195
    Boyd, Gordon M...............................................   195
    Briggs, Leslie C.............................................   206
    Brookdale Fruit Farm.........................................   201
    Brunet, Nicholas C...........................................   193
    Calhoun, John C..............................................   212
    Charlane Plantation..........................................   310
    Chase, George W..............................................   210
    Coolidge, Hamilton...........................................   198
    Dannehy, W.M.................................................   203
    Demmons, George..............................................   220
    Doscher, Paul A..............................................   199
    Florida Department of Environmental Protection...............   285
    Freeman Farm.................................................   309
    Fry, Judith E................................................   200
    Green Bay Packaging..........................................   299
    Greenleaf Products, Inc......................................   210
    Gregg, Hon. Judd, U.S. Senator from the State of New 
      Hampshire..................................................   189
    High Ridge Tree Farm.........................................   203
    Kachavos, Kathryn Donovan....................................   207
    Kentucky Forest Industries Association.......................   308
    Klefos, Constance............................................   216
    Knowles, Stanley.............................................   218
    LaPointe, Thomas.............................................   192
    Leighton, Roger S............................................   211
    Minnesota Forestry Association...............................   307
    Montana Forest Owners Association............................   308
    New Hampshire Department of Environmental Services...........   191
    New Hampshire Department of Resources and Economic 
      Development................................................   191
    New Hampshire Timberland Owners Association................188, 201
    Nix, Joe F...................................................   299
    O'Neil, John.................................................   193
    Page, Milton L...............................................   210
    Parke, Isobel................................................   209
    Phillips Exeter Academy......................................   205
    Pine Knob Farm.............................................200, 295
    Preston, Luther..............................................   215
    Rhoades, Peter C.............................................   208
    Schwaegler, Bruce M........................................202, 204
    Skidmore, David D............................................   211
    Society for the Protection of New Hampshire Forests..........   198
    Sulas, Michael D.............................................   194
    Thompson, Charles W..........................................   197
    Thomson Tree Farm............................................   213
    Tomapo Farm..................................................   205
    Twin Cedar Farm..............................................   221
    Yates, Bill and Nancy........................................   206
Statements:
    American Tree Farm System....................................   305
    Chevon Companies.............................................   296
    Copeland, Claudia, specialist in Resources and Environmental 
      Policy Resources, Science, and Industry Division, 
      Congressional Research Service, The Library of Congress....   252
    Society of American Foresters................................   306
                                 ------                                

                 MAY 6, 2000--WHITEFIELD, NEW HAMPSHIRE
                      IMPACT ON FORESTRY PRACTICES
                           OPENING STATEMENTS

Smith, Hon. Robert C., U.S. Senator from the State of New 
  Hampshire....................................................331, 407

                               WITNESSES

Bryce, Philip, Director, New Hampshire Division of Forests and 
  Lands, Concord, NH.............................................   353
    Prepared statement...........................................   408
Buob, Tom, University of New Hampshire Cooperative Extension.....   381
    Prepared statement...........................................   442
Fox, J. Charles, Assistant Administrator, Environmental 
  Protection Agency, Washington, DC..............................   336
    Prepared statement...........................................   410
Girard, Nancy L., Vice President & Director, Conservation Law 
  Foundation's New Hampshire Advocacy Center.....................   382
    Prepared statement...........................................   443
Hodsdon, John, Director, New Hampshire National Association of 
  Conservation Districts, Meredith, NH...........................   367
    Prepared statement...........................................   434
King, Hon. Fred, Senator from the State of New Hampshire.........   338
Kingsley, Eric, Executive Director, New Hampshire Timberland 
  Owners Association.............................................   369
    Prepared statement...........................................   436
Lovaglio, Ronald B., Commissioner, Maine Department of 
  Conservation, Augusta, ME......................................   355
    Prepared statement...........................................   426
Mason, Scott, Northwinds Farm, Coos County Farm Bureau...........   385
    Prepared statement...........................................   445
Niebling, Charles R., Senior Director, Policy and Land Management 
  Society for the Protection of New Hampshire Forests............   371
    Prepared statement...........................................   438
Paris, David, Water Supply Administrator, Manchester Water 
  Treatment Plant................................................   388
    Prepared statement...........................................   448
Poltak, Ronald F., Executive Director, New England Interstate 
  Water Pollution Control Commission.............................   357
    Prepared statement...........................................   433
Stewart, Harry, Director of Water Division, New Hampshire 
  Department of Environmental Science, Concord, NH...............   350
    Prepared statement...........................................   406
Swanton, Joel, Manager of Forest Policy, Champion International..   373
    Prepared statement...........................................   439
Williams, Bill, staff member for Representative Charles F. Bass..   334
    Prepared statement of Representative Bass..................335, 425

                          ADDITIONAL MATERIAL

Letters:
    Governor of New Hampshire Jeanne Shaheen.....................   426
    Maine Department Agriculture, Food, and Rural Resources......   428
    Maine Department of Conservation.............................   431
    Maine Department of Environmental Protection.................   429
    Massachusetts Department of Environmental Protection.........   419
    New Hampshire Association of Conservation Districts..........   435
    New Hampshire Department of Resources and Economic 
      Development................................................   410
    New Hampshire Department of Economic Development.............   412
    Northwinds Farm..............................................   447
    Rhode Island Department of Environmental Management..........   421
Statements:
    Balch, Si, Chief Forester, Mead Paper, Wilton, ME............   452
    Bass, Hon. Charles, U.S. Representative from the State of New 
      Hampshire..................................................   425
    Bonny, David, Newry, ME......................................   454
    Hodson, John M., National Association of Conservation 
      Districts..................................................   453
    Joint Views of U.S. Department of Agriculture and U.S. 
      Environmental Protection Agency............................   417
        Responses to Joint Views Document........................   450
    Olson, John, Maine Farm Bureau Association...................   454
    Lehner, Jim, Plum Creek Timber Co............................   454
    Packer, Sara, Wagner Forest Management.......................   457
    Snowe, Hon. Olympia, U.S. Senator from the State of Maine....   422
    Taylor, Stephen, Commissioner, New Hampshire Department of 
      Agriculture, Markets, and Food.............................   457
                                 ------                                

                              MAY 18, 2000
           S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........   465
Boxer, Hon. Barbara, U.S. Senator from the State of California...   462
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   459
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....   467
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......   463
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........   470

                          ADDITIONAL MATERIAL

Letters:
    Associated General Contractors of America....................   503
    Governor of New Hampshire Jeanne Shaheen.....................   489
    Governor of Oregon John Kitzhaber............................   488
    Louisiana Department of Agriculture and Forestry.............   507
    Louisiana Department of Environmental Quality...............510-522
    LSU Agriculture Center.......................................   508
Statements:
    Barrett, Hon. John, Agricultural Representative, EPA TMDL 
      Federal Advisory Committee.................................   501
    Clean Water Action Network.................................505, 522
    Fox, Hon. J. Charles, Assistant Administrator for Water, 
      Environmental Protection Agency............................   478
    Geisinger, Jim, president, Northwest Forestry Associations...   487
    Givens, Dale, secretary, Louisiana Department of 
      Environmental Quality......................................   495
    Lyons, Hon. Jim, Under Secretary, Natural Resources and 
      Environment, Department of Agriculture.....................   485
    Miele, Robert P., California Association of Sanitation 
      Agencies...................................................   497
Moyer, Steve, vice president of Conservation Programs, Trout 
  Unlimited......................................................   492
    Sweatt, Loren E., director, Congressional Relations, The 
      Associated General Contractors of America..................   503
                                 ------                                

                  JUNE 12, 2000--HOT SPRINGS, ARKANSAS
                           OPENING STATEMENT

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   525

                               WITNESSES

Bates, Hank, Sierra Club, Little Rock, AR........................   549
Blubaugh, Vince, G.B. & Mack and Associates, El Dorado Chemical 
  Company, El Dorado, AR.........................................   553
    Prepared statement...........................................   585
Cooke, Gregg, Regional Administrator, Region VI, Environmental 
  Protection Agency, Dallas TX...................................   529
    Prepared statement...........................................   573
Hart, Christopher, senior Wildlife Biologist, The Timber Company, 
  Brandon, MS....................................................   551
    Prepared statement...........................................   583
Hillman, David, president, Arkansas Farm Bureau Federation.......   552
    Prepared statement...........................................   583
Hutchinson, Hon. Tim, U.S. Senator from the State of Arkansas....   526
Mathis, Randall, director, Arkansas Department of Environmental 
  Quality, Little Rock, AR.......................................   532
    Prepared statement...........................................   580
Nance, Larry, Deputy State Forester, Arkansas Forestry 
  Commission, Little Rock, AR....................................   531
    Prepared statement...........................................   582

                          ADDITIONAL MATERIAL

Articles:
    Tree Farmers Fear EPA's Bite.................................   594
    Your Land, Your Options: What You Should Know Before You Sell 
      Your Timber................................................   588
Letter, John T. Shannon..........................................   582
Resolution, Fred Towse, USNR-HEMCO Division......................   587
Statement, Arkansas Home Builders Association....................   586

 
      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                              ----------                              

                        WEDNESDAY, MARCH 1, 2000

                               U.S. Senate,
         Committee on Environment and Public Works,
    Subcommittee on Fisheries, Wildlife, and Drinking Water
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 1:00 p.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.

                   FEDERAL REVIEW OF TMDL REGULATIONS

    Present: Senators Crapo, Thomas, Wyden, and Smith [ex 
officio].
    Also present: Senator Baucus.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The committee will come to order. This is 
the Senate Committee on Environment and Public Works 
Subcommittee on Fisheries, Wildlife and Water. The hearing is 
to consider proposed changes to the TMDL program and the costs 
and impacts to the States.
    I would like to welcome everyone here today, and to tell 
you about the procedure that we are going to follow. We expect 
to have three stacked votes called at 2:00 p.m. Wherever we are 
at that point, we will go into a recess, which could be 45 
minutes or so, depending on how long it takes to conduct those 
votes.
    We have with us today as our first witness, Governor 
Racicot from Montana, who has a time parameter requiring that 
we move ahead expeditiously with his testimony. He needs to 
catch an airplane and get back home to his family. And I for 
one can certainly understand those concerns, Governor Racicot.
    So, what I'm going to do is go immediately to you, Governor 
Racicot and then as other members of the committee arrive we 
will have them provide their opening statements.
    Today the Subcommittee on Fisheries, Wildlife and Water 
will hear from witnesses on proposed changes to the Total 
Maximum Daily Load (TMDL) and NPDES programs under the Clean 
Water Act. This is the first in a series of hearings and we 
will focus today on the costs and impacts to the States.
    We will be joined by a number of distinguished witnesses, 
including Governor Marc Racicot of Montana, and several top 
administrators of State agencies and local governments, who 
will provide their perspectives on EPA's proposed rule, and 
what it means to States and communities. Cleaning up our 
Nation's water has long been a top priority of the Federal 
Government. Everyone supports that goal. I believe that we have 
made great strides toward this objective, but I believe that 
there's much left to be done.
    This is a goal that can be accomplished only through 
collaborative efforts and partnerships at the Federal, State 
and local government level as well as with stakeholders. 
Similar sentiments were expressed in an EPA document called the 
October 1999 ``Agenda of Regulatory and De-regulatory Actions 
and Regulatory Plan.''
    In fact, on the cover of that document is a quote that 
says, ``EPA believes that if the people affected by rules take 
part in developing them, we will produce rules that are clear, 
less burdensome and more effective.''
    Inside the document next to a photograph of Administrator 
Browner is the quote, ``We must inform and involve those who 
must live with the decisions we make, the communities, the 
industries, the people of this country.''
    I couldn't agree more with those two statements. Several 
years ago I read a book called, The Community and the Politics 
of Place, written by Dan Kemmis, who was I believe at that 
time, a professor at the University of Montana. I read his book 
to fit exactly with the perspective that I believe we should 
follow in pursuing collaborative and local decisionmaking. 
Policies, particularly those advanced by the Federal Government 
and those with regulatory implications are doomed to failure 
without the support of States, communities and stakeholders.
    Federal, State and local partnerships are the only means by 
which we can be successful in carrying out the measures that 
will result in a healthy environment, whether it's cleaning up 
our Nation's waters, restoring salmon runs, or conserving 
America's other precious natural resources.
    So I commend EPA for these very strong statements in favor 
of working together in partnerships that address environmental 
issues. That said, let me talk a little bit about how EPA's 
proposed rule changes impact on TMDLs.
    Let examine how the words of the Agency and their actions 
compare.
    In November 1996, the EPA convened a committee under the 
Federal Advisory Committee Act to look at possible TMDL rule 
changes. The committee was composed of the environmental 
community, State and local governments and the regulated 
community. The group met for 18 months and published its 
findings in July 1998, detailing recommendations on how to make 
the TMDL program work more effectively.
    Since the rule was published last August, EPA has stated 
that the proposed changes, such as the proposed requirement 
that the States submit an implementation plan under section 
303(d), are simply part of the recommendations of the FACA 
Committee. However, this very contentious provision in the rule 
was not resolved in the FACA committee's report. For EPA to 
cast this provision as the product of collaborative 
decisionmaking is to put a selective interpretation on the 
recommendations.
    To compound this problem under the proposed rule, the 
States Implementation Plan would be subject to EPA approval. It 
is extremely unlikely that section 303(d) of the Clean Water 
Act provides the EPA with the authority to require each 
implementation plans.
    Although this may seem like a minor legal issue, in fact, 
it could potentially hold grave consequences for private 
landowners across the country. If, for example, the EPA were to 
reject an implementation plan based on inadequate riparian 
buffer widths, even if the buffers were State-approved best 
management practices, EPA would be free to rewrite the 
implementation plan under the loophole that the Agency has 
provided itself with the authority to do so by this proposed 
rule. I believe that this authority is outside of the statutory 
language provided by Congress in the Clean Water Act.
    One of the most disturbing provisions of the proposed 
August rules is the significant change proposed by EPA to the 
National Pollution Discharge Elimination System, NPDES. EPA has 
proposed to change the definition of a non-point source. This 
change will have the effect of subjecting private land 
activities, such as traditional agricultural and forestry 
activities, to Federal NPDES permits.
    It is my understanding that this change was never discussed 
during the FACA deliberations. In reading the proposed rule it 
doesn't require an economist to conclude that this rule would 
be very expensive to implement. However, given the universal 
belief that this proposed rule if implemented would be 
ruinously expensive to States, local governments and private 
industry, I'm astounded by this statement in the proposed rule 
from the Federal Register:

    The EPA has determined that today's proposed rule does not 
contain a Federal mandate that may result from the expenditures 
of $100 million or more for State, local and tribal governments 
in the aggregate or the private sector in any 1 year.

    The costs for States, territories and tribes are not 
expected to exceed $25 million in any 1 year. And today's 
proposal does not impose any requirements on the private 
sector. Let me read that again. ``Today's proposal does not 
impose any requirements on the private sector.'' I believe 
we'll hear more about that from our witnesses today. I'm very 
concerned that this type of statement has come from an Agency 
that has promised, ``To produce rules that are clear, less 
burdensome and more effective.'' I'm concerned that this type 
of statement is designed to avoid the safeguards Congress built 
into the law and feed the growing cynicism toward their 
government.
    When the rule was published in August of last year the EPA 
provided a 60-day comment period for receiving public input. 
Given the scope and complexity of the rule, the significance of 
the changes and the array of parties that would be affected, a 
60-day comment period was wholly inadequate for providing 
meaningful input with respect to the proposal. It was hardly 
informing and involving those who must live with the decisions. 
After EPA denied requests to extend the comment period this 
committee through its past chairman and ranking member was 
forced to intervene. The comment period was subsequently also 
extended legislatively.
    By the close of the comment period on January 20, the EPA 
had received 30,000 comments. This hearing marks the fifth 
occasion that a committee or subcommittee has seen fit to 
examine the numerous and significant changes that this TMDL 
proposal subjects us to. In my 7 years in Congress I've never 
seen one proposal draw this level of attention and scrutiny by 
committees with different jurisdictions.
    Let me just quickly recount this history. Provisions were 
included in the proposed rule that were not a part of the FACA 
committee's recommendations. Yet the EPA continues to claim 
that the rule is based on this group's report. States, 
communities and stakeholders have voiced their strong concerns 
about the cost of the proposed rule. Congress was forced to 
intervene and legislatively extend the comment period for an 
additional 90 days. Thirty thousand comments were received on 
the rule, many of which expressed concern from both technical 
and legal perspectives.
    To date this is the fifth hearing to be held on the 
proposed rule in other committees. The mere fact that these 
hearings have been held suggest to me that there is significant 
concern in Congress about this proposed rule. Given these facts 
I understand that the EPA still intends to issue a final rule 
as early as June. I find this extremely disturbing. This 
suggests to me that this rule is being fast tracked in the face 
of overwhelming concern from States, communities and 
stakeholders. And even other departments within this 
administration. And ironically enough this is the same agency 
that says it wants to work with the people affected by the 
rules in order to produce clear, less burdensome and more 
affective rules.
    I look forward to hearing from the EPA about how it truly 
intends to engage all parties affected by this rule, rather 
than paying lip service to a concept of collaboration. I look 
forward to hearing our other panelists address how these issues 
affect them and how we might move forward in finding a more 
workable rule that achieves the important goal of cleaning up 
our Nation's waters.
    Senator Wyden, before you came in we noted that Governor 
Racicot needs to catch an airplane and I was wondering if the 
other members would hold on their opening statements and let 
the Governor go first or do you have a statement that you would 
like to make at this time?
    Senator Wyden. If you wouldn't mind Mr. Chairman, and I 
want to hear the Governor as well, if I could just have a 
couple of quick minutes because my schedule is jammed.
    Senator Crapo. Certainly. I suspected that might be the 
case. So, if you could just understand the Governor's time 
constraints we'd appreciate it.

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

    Senator Wyden. I'm going to be brief. I appreciate your 
holding the hearing. I just want to outline very briefly my 
concerns with EPA's approach and then suggest a constructive 
alternative. I know the Governor has been interested as my 
Governor has as well, John Kitzhaber, looking at some different 
kinds of approaches. And I'll be brief.
    My problem with EPA's approach to TMDL is that essentially 
what EPA is saying is that marine water flowing through a 
forest or a farmer's field can't be monitored and it shouldn't 
be regulated the same way as point sources, as pollution from 
factories. Calling forestry activities, such as harvesting, a 
point source is like requiring every cow on a ranch to get a 
pollution permit. It's just not going to work. The States have 
taken a different approach. The best management practices 
approach provides guidelines to conduct forestry in an 
environmentally friendly manner. I like that it essentially 
gives us a chance, especially in the West, to come up with 
homegrown, locally driven approaches. You don't say what works 
in eastern Oregon is going to work in Kansas or that what works 
in one part of the country is going to work in the West.
    The other problem I have in Oregon, is that many of the 
streams which would be subject to EPA's new TMDL rules are 
already struggling with the legal requirements from the 
Endangered Species Act. So, I'm also troubled by the fact that 
EPA doesn't take steps to coordinate these various 
requirements. I'd like to suggest, and I'd like your comment, 
Governor, a more workable framework from managing non-point 
pollution that would be scientifically and legally defensible 
and would provide the benefits for the Endangered Species Act 
while minimizing the burdens on landowners.
    Here's what I'd like to see us look at as an alternative to 
what EPA is talking about.
    First, we develop a one-stop-shopping approach for the 
landowners so that they could fulfil their Clean Water Act and 
Endangered Species obligations at the same time. I'd like to 
see the 
agencies collaborate so that a landowner can use the same land 
management plan to qualify for a Habitat Conservation Plan and 
TMDL. It just seems to me that if we can coordinate these two 
permits, time and money can be saved.
    Second, I'd like to see increased funding for the BMP 
program to control non-point pollution. This is something we do 
at the State level.
    Third, we're going to need some more flexibility in the 
TMDL plans so that scientist can look at how the best 
management practices actually work, in particular places where 
plans are being rewritten. Please comment on those ideas. I 
want you to know that we're very troubled at home about the way 
that TMDL approach is being used and we know that you and a 
number of Governors have looked at innovative approaches. If we 
were to do nothing, other than to develop a one-stop-shopping 
approach for the landowner so that they could fulfill their 
Clean Water Act and Endangered Species obligations at the same 
time, I think that would start us down the direction of a 
constructive alternative. I know your schedule is tight. I'm 
going to put my statement into the record and I would very much 
like to hear your thoughts on that. Thank you, Mr. Chairman.
    [The prepared statement of Senator Wyden follows:]

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

    Rainwater flowing through a forest or farmer's field can't 
be monitored and shouldn't be regulated the same way as point 
sources--pollution from factories. Calling forestry activities 
like harvesting a point source is like requiring every cow on a 
ranch to get a pollution permit--it simply won't work.
    That's why we use Best Management Practices--guidelines for 
how to conduct forestry in the most environmentally friendly 
manner possible. And these BMPs have to be worked out on a 
local level. The solutions that work for a watershed in western 
Oregon will not work for one in eastern Oregon, and certainly 
not for one in Kansas. Local people need to be involved, which 
happens best through state-run 
incentive-based programs rather than the kind of top-down 
Federal mandates implied in these proposed rules
    In Oregon, many of the streams which would be subject to 
EPA's new TMDL rules contain endangered fish, and landowners 
are already struggling with the legal requirements of the 
Endangered Species Act, so doesn't it make sense that these 
requirements be coordinated?
    I'd like to suggest a more workable framework for managing 
non-point pollution, one which will be more scientifically and 
legally defensible, and will provide environmental benefits for 
endangered species and water quality while minimizing the 
burden on landowners. My approach would involve: developing a 
one-stop shopping approach for landowners, so that they can 
fulfill their Clean Water Act and Endangered Species Act 
obligations at the same time. I'd like to see the agencies 
coordinate so that a landowner can use the same land management 
plan to qualify for a Habitat Conservation Plan and a TMDL 
plan; increased funding for the use of Best Management 
Practices to control non-point pollution; and allowing 
flexibility in TMDL plans, so that as scientists study how Best 
Management Practices are actually working in a particular place 
the plan can be rewritten.

    Senator Crapo. Thank you very much, Senator Wyden. We 
appreciate your brevity in the light of the Governor's time 
constraints. We now have the Senator from Montana here who 
would like to take a quick opportunity to introduce the 
Governor for his remarks, Senator Baucus.

  OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. Thank you, Mr. Chairman, it would be an 
honor to introduce our Governor. He's done a great job in our 
State. Governor when you speak on what Senator Wyden said, let 
me also say that the goals of the Clean Water Act are very 
important. In the 1972 Clean Water Act, the goals fishable and 
swimmable waters are stated. We've made a lot of progress in 
our country since the Act was passed. It's been with some 
difficulty, but we have a good bit left to do. I'd be 
interested in your general thoughts on how we get there. 
Passing technology standards is pretty easy. The hard part is 
getting some kind of ambient watershed plan put together that 
includes point and non-point sources. As we have for the air 
programs, we have State Implementation Plans, as you well know, 
for ambient air. I think it makes sense to do something similar 
for water. The question is how? It's pretty complicated; what 
do you think the States' role should be and whether the SIPs in 
the Clean Air Act are any guide or not. Is this just too 
different or is it similar?
    We both agree that EPA's action with respect silviculture 
practices is off-base and you might want to comment a bit on 
that. And finally a question in my mind is the degree to which 
the State of Montana have pretty well worked out an agreement 
with EPA that the State can live with. They can abide by the 
provisions of the agreement worked out with EPA, but then 
occurred a court decision which said that they have got to be 
more comprehensive. The decision was arbitrary, and capricious.
    So, how much did the court interpret the law? How much of 
it otherwise, concerning EPA's actions, made sense from the 
State of Montana's point of view prior to the court's decision. 
And given the court decision interpreting the law, they 
interpreted the 1972 Act, how do we get to there in a 
responsible way?
    Thank you.
    Senator Crapo. Thank you, Senator. And, Governor, without 
any further ado we will turn to you for your testimony.

        STATEMENT OF HON. MARC RACICOT, GOVERNOR, STATE 
                           OF MONTANA

    Governor Racicot. Thank you, Mr. Chairman. It's a privilege 
to be here in front of the committee, and particularly with 
Montana's senior Senator here today, I'm delighted to have the 
opportunity to testify.
    Senator Baucus. I appreciate that. I feel pretty senior 
sometimes. I guess I'm a senior citizen.
    Governor Racicot. I said ``Senior Senator.''
    Senator Baucus. It was my ears that heard senior citizen.
    Governor Racicot. If I misspoke I extend my deepest 
regrets.
    Senator Baucus. You clearly did not misspeak. I misheard.
    Governor Racicot. For the record my name is Marc Racicot 
and I temporarily serve as the Governor of the State of Montana 
and I do appreciate the invitation to share my thoughts 
regarding the Clean Water Act and specifically the Total 
Maximum Daily Load issues. As you know I have submitted written 
testimony and I won't go over every word of that testimony. I'd 
like to highlight a couple of provisions and I know you want to 
have some dialog about this particular issue.
    It is an issue that is of great importance to our State. 
Both to our people and of course to the resources that we 
jointly cherish in the State of Montana and all across the 
country. We're pleased that the committee is taking an active 
role in reviewing the Environmental Protection Agency proposed 
revisions to agencies to the water quality regulations found at 
40 CFR 130. And published in the Federal Register on August 23, 
1999. Before I begin I want to mention to the subcommittee 
members that I've also attached to my testimony the formal 
comments that I submitted on behalf of the State of Montana to 
EPA on the proposed rule.
    Our State natural resource agencies all work together, that 
was their charge, to analyze the proposed rule and to develop 
consensus comments that are attached to my testimony. So they 
reflect different disciplinary perspectives from the Department 
of Environmental Quality, from the Department of Natural 
Resources and Conservation and the Department of Fish, Wildlife 
and Parks, and Department of Agriculture.
    The State of Montana is very committed to achieving the 
clean water goals set forth in section 303 of the Clean Water 
Act. And this is especially demonstrated I believe through our 
1997 passage of State legislation pertaining to Total Maximum 
Daily Load processes.
    Our TMDL amendments to the Montana Water Quality Act that 
occurred in 1997 successfully addressed many of the same issues 
that we're now focusing upon as a result of the EPA's proposed 
rules. Our comprehensive State law establishes 303(d) listing 
methodologies and criteria. It specifies a public involvement 
in plan. It sets a 10-year schedule for statewide TMDL 
development. It address TMDL implementation and monitoring and 
it authorizes pollution offsets. As well our State TMDL program 
funding appropriation provides new State revenues for 
accelerated water and quality problem solving.
    Indeed, we are currently achieving at the State level what 
EPA hopes to accomplish nationally with the proposed rules. 
EPA's presumptions that solutions to longstanding national TMDL 
issues must be prescribed within the context of new Federal 
regulations is at the core of Montana's concerns over the 
proposals. We fear that the program changes envisioned by EPA 
will add unnecessary and inappropriate specificity that will 
ultimately hinder the success of our current program.
    The proposed changes could seriously compromise our State 
program goals and strategy, undermine recent intense 
implementation efforts and public trust and reduce our overall 
progress of achieving the water quality restoration goals of 
the Federal Clean Water Act.
     Mr. Chairman, I'd like to mention briefly the process 
which led up to the enactment of our State law because I do 
believe that there are some lessons that are good to share with 
all who may be engaged in this process presently. And I must 
confess that we are very proud of what we have accomplished to 
date in the State of Montana.
    We started a dialog late in 1996 between Montana natural 
resource agencies, businesses and industries and conservation 
groups to gauge interest in developing State TMDL legislation 
which would address the concerns that are addressed by the 
rule. A briefing paper was developed and distributed in a broad 
range of interests were invited to participate on a work group 
to draft legislation.
    Over several weeks the group met regularly to revise drafts 
of the bill and to try to achieve consensus on bill content. 
While complete agreement was not achieved prior to the deadline 
for submitting the bill, remarkable progress was made in coming 
together on many of the issues and this effort paid off in 
strong support for passage of the bill in both houses of 
Montana's legislature and few amendments were ever offered 
during the legislative process. House bill 536 was the piece of 
legislation and it was passed into law in the State of Montana 
and it became immediately affective with my signature on May 5, 
1997.
    Funding totaled nearly $1.4 million for the biennium and 
that also was provided for by the Montana legislature. At the 
heart of our program is the TMDL advisory council. The council 
is made up of representatives from agriculture, industry, 
environmental groups, State and Federal agencies and 
recreationists. And the group provides input and advice to 
State decisionmakers and professional staff and helps insure 
that the development and implementation of measures to improve 
water quality are truly grassroots approaches.
    We believe that those landowners and users who are asked to 
host and support on-the-ground measures should have a say in 
their development. Although EPA's standard objective in 
developing the proposed rules was to strengthening the 
efficiency and effectiveness of the Clean Water Acts TMDL 
program, the rule is too little to accomplish this objective. 
Instead, the new regulations would add unnecessary complexity 
to Montana's ability to develop TMDLs in a timely fashion. The 
new regulations appear to focus on listkeeping and technical 
reporting to EPA rather than effective assessment, 
implementation and resolution of water quality problems. The 
rules also create a regulatory framework that is inherently 
inconsistent with section 303(d) of the Clean Water Act.
    Specifically, the rules create a presumption that a States 
entire TMDL program, including its process and methodology of 
identifying impaired waters, prioritizing those waters, 
developing TMDLs for those waters and addressing non-point 
sources in its TMDL process are all subject to EPA's approval.
    In effect the rules provide EPA with a legal power over a 
States entire TMDL program. This is not a power, in my view, 
envisioned by Congress when it granted EPA a limited oversight 
role to review a State's submission of lists and TMDLs under 
section 303(d).
    The State of Montana also objects to the imposition of 
regulations establishing regulatory requirements over every 
component of the States TMDL program when Congress has not 
sanctioned that approach.
    One of the primary drawbacks of EPA's proposed regulations 
is that they impose numerous regulatory details to address 
prior inefficiencies in TMDL development that have already been 
addressed by many States. Montana has already accomplished what 
EPA is attempting to achieve through the proposed rules. 
Montana is already more than 2 years into the process of making 
comprehensive changes to its 303(d) listing methodology and 
creating a publicly supported approach to the development of 
TMDLs.
    We have a TMDL development schedule, new listing methods 
and decision criteria, and a new publicly accessible data base 
to support listing decisions, a new TMDL prioritization 
process, and we've been working with local groups to ensure 
that TMDLs would be implemented over the long term with 
reasonable assurance.
    Also, Montana's monitoring provisions require that after 5 
years, TMDL plans will be evaluated to determine if the 
implementing 
organizations are making satisfactory process. And while we 
recognize the need for consistent guidance to States and the 
public 
regarding TMDLs, the new regulations do not give those States 
already implementing programs of their own, enough latitude to 
determine appropriate management measures, especially for land 
use related non-point source problems.
    In its finalization of the rules, we believe the EPA has to 
acknowledge that Montana and many other States have already 
developed processes, methods and approaches to meet court, 
legislative or State ordered demands for the existing TMDL 
programs.
    In many cases EPA's proposed new substantive rules might be 
disruptive and expensive to States that have already developed 
effective TMDL programs endorsed by stakeholders and elected 
officials. This issue is at the forefront of Montana's concerns 
with the rules as they're currently proposed.
    The existing processes and approaches that meet court 
decrees and/or provide positive and beneficial results should 
not be compromised or superseded by these new rules. At the 
same time States should be encouraged to be innovative in 
developing new processes and approaches that achieve the 
results envisioned by those rules in a more efficient manner.
    And with those things in mind, the State of Montana would 
encourage EPA to apply a functional equivalency test to State 
TMDL programs prior to imposition of any new program 
requirements. The test will provide a demonstration that a 
State process, method or approach achieves the same desired 
results intended to be achieved by the proposed rules.
    Now numerous examples of these cases including how States 
prioritize their lists, incentives that States have built into 
their programs to achieve correction of impaired condition in 
lieu of a TMDL, and a recognition of various approaches to 
implementing TMDLs.
    Frankly, Mr. Chairman, we strongly believe EPA must 
recognize that one-size-does-not-fit-all and that TMDL rules 
must remain open to alternative methods of doing business that 
achieve comparable results. We're also seriously concerned 
about the fiscal implications of the proposed changes. By all 
indications the proposed program and it's increased scientific 
rigor and reporting burden would cost substantially more to 
administer while achieving fewer water quality improvement 
results.
    The State of Montana operates its current TMDL program on a 
limited budget, but achieves a high degree of efficiency 
through local leadership and volunteerism to be quite honest. 
And by minimizing administrative overhead cost, increasing 
program administrative cost would translate directly to less 
money available for local on the ground implementation of water 
quality improvement measures.
    We are very concerned that the new TMDL rules would result 
in significant additional costs to States over the current law. 
According to EPA's water quality work load model, Montana 
currently has minimal resources to run a TMDL program under the 
rules as they now stand. Currently our Department of 
Environmental Quality has 13 full-time employees committed to 
water quality standards activities. Including monitoring, 
reporting and TMDL activities with a budget of about $1.35 
million. EPA's water quality work load model, the draft module 
2 when calibrated to Montana's perimeters suggested 58 full-
time employees and a total budget of $4.9 million would be 
needed to implement TMDLs on a time-line under the rules as 
they now stand.
    It follows then that the new and more complicated rules 
proposed by EPA would set back the staff and then slowly and 
unduly slow down the TMDL process unless additional resources 
were obtained. In addition to that the new rules undo much of 
the work and fiscal investments already put in to Montana's 
current TMDL program. By our most conservative estimate DEQ 
would need at least twice the current resources to comply with 
the proposed rules in a timely fashion.
    Our best guess is that between 22 and 24 additional full-
time employees, over the 13.5 currently employed, would be 
needed to comply with the new TMDL rules along with several 
tens of thousands of dollars in new equipment.
    For the new rules to be successful in achieving national 
clean water goals they have to accommodate a degree of 
flexibility on the part of the States that are charged with 
primary responsibility to implement the program. They have to 
acknowledge that individual States are in the best position to 
formulate the most effective and efficient water quality 
improvement strategies for their regions.
    We just believe, Mr. Chairman, that the top-down 
prescriptive complexion of the rules is contrary to the Clean 
Water Act and contrary to Montana's grassroots approach to TMDL 
development. Last, but no less important, EPA, we believe, has 
to remain sensitive to the need for additional State resources 
if national clean water goals are going to be further expanded. 
And so we have submitted to you along with our written 
testimony a number of 
recommendations concerning the proposed rule with the specific 
considerations that we hope that you will ultimately be able to 
recommend and ultimately that we hope to see implemented within 
the policy for TMDL enforcement across the United States of 
America.
    Thank you, Mr. Chairman very much, and I stand ready to 
submit myself to cross examination.
    Senator Crapo. Thank you very much, Governor.
    Before we begin let me clarify, is it going to fit with 
your schedule and time lines if we have you finished here by a 
quarter to 2?
    Governor Racicot. Yes, Sir.
    Senator Crapo. All right, that gives us 5 minutes each.
    Governor Racicot. Actually, Mr. Chairman, I'm probably OK 
if I'm out of here by 5 or 10 after. I'd probably be OK.
    Senator Crapo. OK. Well, you shouldn't have said that. Now 
you're going to get really cross-examined.
    Governor, I just want to go over my understanding of your 
testimony and be sure that I understood you correctly. As I 
reviewed your testimony and listened to you I understood you to 
say that the proposed rule will, if implemented and if Montana 
is required to comply with it, will not increase the 
effectiveness of Montana's efforts to address water quality 
standards. Is that correct?
    Governor Racicot. Yes, Sir, that would be my testimony. We 
believe that--we started out trying to exercise some foresight 
and trying to demonstrate the kind of unique as well as a 
sincere effort to make certain that we live within the 
confines, the spirit and the letter of the law and so we set 
out in 1996 to do that. We don't invest money easily in the 
State of Montana. We don't have a lot of extra resources. So 
for our legislature to not only endorse our program, and this 
was a very conservative legislature, but we had the endorsement 
of conservation groups and stock growers and agency officials 
and all of those involved in the process, for them to endorse 
the legislation in the first place and then to fund it at a 
significant level, was a major accomplishment. And so we've 
been proceeding with diligence and good faith to try and make 
certain that we live within the expectations of the Clean Water 
Act.
    And we don't believe that the imposition of a hierarchical 
structure that requires much more investment and time will lead 
to results beyond those that we can achieve. And as a guarantee 
of that, what we would suggest is that if the EPA doesn't find 
that our program is a functional equivalent, then they could 
clearly make those observations and provide authority or a 
jurisdiction to proceed otherwise.
    Senator Crapo. If you are not able to find the additional 
resources that you describe that would be necessary to 
implement this rule, won't you then end up having to divert 
resources from the program that you have in place to the 
implementation of the rule?
    Governor Racicot. There's unquestionably no doubt about 
that.
    Senator Crapo. And if that were to happen, would that not 
actually detract from your ability to have on-the-ground 
effective water quality programs?
    Governor Racicot. We believe it would impede and delay our 
process substantially.
    Senator Crapo. In other words unless Montana is able to 
come up with 22 to 24 FTE's and I assume the dollars that go 
along with that which is going to be $3 to $5 million, if I 
understand your numbers right--am I in the ballpark there?
    Governor Racicot. Yes, sir.
    Senator Crapo. Unless you're able to come up with those 
extra dollars, this proposed rule could actually drain 
resources that would reduce the ability to address water 
quality in Montana?
    Governor Racicot. We believe that to be the case.
    Senator Crapo. Let's get into those numbers just a little 
bit more specifically. I know in your testimony you indicated I 
think 58 FTE's and $4.9 million, but did that include what you 
were already doing in the State efforts?
     Governor Racicot. No. No, our extrapolation is that if we 
were to calibrate the EPA proposed rule to our requirements in 
the State of Montana, recognizing of course how large it is, 
and with all the new complexities that would be associated with 
rule enforcement, that, in fact, we would have to have that 
much additional investment.
    Senator Crapo. And you indicated and you have very well 
explained the effort that Montana has gone through to modernize 
and update its approach to TMDLs and to address the Clean Water 
Act standards. Do you know whether other States have undergone 
this same process or whether Montana is in a unique situation 
and the other 49 States need the EPA to come in and do this?
    Governor Racicot. I know that there are other States, Mr. 
Chairman, but I could not list those for you. But I know that 
there are other States in the same posture that the State of 
Montana is in.
    Senator Crapo. All right, thank you very much. I'm going to 
forgo any further questions at this point and turn next to 
Senator Wyden.
    Senator Wyden. Thank you.
    I think you've given excellent testimony. Governor, it 
seems to me you essentially made most of the points that I'd 
like to see in a three-part approach: one-stop shopping for 
landowners so they can fulfil their Clean Water Act and 
Endangered Species obligation at the same time; increased 
funding for the practice used by the States; and best 
management practices for non-point pollution. And more 
flexibility in TMDL plans.
    If I push as a member of this committee with my friends Max 
Baucus and Mike Crapo, on a bipartisan basis, to offer these 
three points as an alternative to the way EPA's doing business, 
is that something that you think you could support?
    Governor Racicot. Yes, Sir. I do, Senator Wyden.
    Senator Wyden. I probably ought to quit while I'm ahead, 
Mr. Chairman. I think the Governor's given excellent testimony.
    Governor, as you know, in the West we particularly look to 
you and our Governor John Kitzhaber for leadership in this 
area. What we have seen--and the three of us were involved in 
the effort on ESA--is that we've got to have a system that gets 
away from this ``one-size-fits-all'' approach. What we're 
trying to do with the Oregon Coho salmon plan, what you're 
trying to do with ESA, alternatives, is to say, ``We're going 
to get one of these decisions out of the Beltway and take them 
3,000 miles from Washington, DC or 2,500, as it is I guess for 
you and Max and maybe another few hundred for us and come up 
with homegrown, locally driven solutions. So I really 
appreciate the work that you're doing. I really see you and 
Governor Kitzhaber of our State as the bipartisan innovators in 
this area and I'm going to try to get together with Mike and 
Max and really offer this three-part approach as an alternative 
to what EPA is talking about in terms of TMDL, and we would 
just like your input. And I thank you just for excellent 
testimony and for all the leadership that you offer.
    Thank you, Mr. Chairman.
     Senator Crapo. Thank you, Senator.
    Senator Baucus.
    Senator Baucus. Thank you, Mr. Chairman.
    Marc, first of all I want to thank you for your work on the 
Endangered Species Act. I've been trumpeting reform for a long 
time. And as you know this committee passed the reform bill not 
long ago addressed by the Western Governors. I think you were 
part of it then. Didn't make it to the floor, but we're still 
trying.
    Second, thank you for your work on the Good Samaritan 
legislation that Senator Campbell and I are pushing. I think 
that's going to make a dent too, it will help. Back to the 
issue at hand, though.
     This committee needs some guidance, frankly, as to what to 
do about TMDLs. As you know various courts around the country--
I think 17 courts in all--have ruled that States work with EPA 
in developing TMDLs does not pass muster under the Clean Water 
Act.
    And the same thing happened in our State. Judge Malloy said 
that the State of Montana's 1977 statute in effect just didn't 
pass muster. And so clearly States are trying to figure out 
what to do. The EPA is trying to figure out what to do. The EPA 
passed regulations, I think they issued them August of last 
year, about the time of Judge Malloy's decision. There's a 
certain sense, kind of two ships passed in the middle of the 
night there. I appreciate our States' concerns, but the fact is 
there is a Federal statute and courts have unanimously 
interpreted the Federal statute about the same way, namely, 
State efforts in conjunction with EPA on this issue have been 
inadequate. So we're faced with a challenge here on how we're 
going to deal with all this.
    So I'm asking for some help. Your people have read Judge 
Malloy's decision. I grant you I've looked at some of the 
relevant parts; there's not a lot of guidance there as to what 
passes muster in that court and what won't. And clearly the EPA 
is trying to read these decisions to come up with its own. And 
that's probably why EPA came up with its August 1999 proposed 
rules. They're trying to do the best they can, as all States 
are.
    So, what more do you think States have to do to meet Judge 
Malloy's decision in Montana? Is that about right, or do you 
think the courts are too stringent and we have to change the 
law? I just want to see some guidance as to what to do here. I 
can also then talk to EPA if the law doesn't have to be changed 
then I need some guidance in talking to EPA as to what the 
proper rule should be.
    Governor Racicot. Well, Senator Baucus, I would agree with 
you that there is a substantial challenge to interpreting the 
courts' decisions with absolute precision and to understand 
precisely the directions they have been given because I don't 
think that there were precise directions given on how to go 
about accomplishing the objective. We believe, of course, that 
if there was a substantial equivalency test that were applied 
to the law or the rule, that said that any State's program is 
the equivalent of the EPA rule would not have to engage in the 
processes that are specified by EPA. In other words, if you 
have primacy in relationship to this particular issue and your 
program is substantially equivalent to the EPA rule in terms of 
achieving the required results, just as long as you get to 
those results and not necessarily through the same precise 
formula, that EPA might specify with its rules, that that would 
be a great benefit and assistance.
    In addition to that, we believe within the Western 
Governors Association that through a discussion between the 
Congress and the Western Governors we could craft the kind of 
counsel and recommendation to this committee that would be of 
assistance to the committee in crafting a final legislative 
proposal if in fact you chose to move in that direction.
    Senator Baucus. But presumably ``substantially equivalent'' 
would be stronger than Montana law because the judge overruled 
the Montana law. He said the Montana law did not comply with 
the Clean Water Act. EPA is also looking at other court 
decisions and trying to figure out what to do. You're 
suggesting that whatever it is, States should be able to enact 
something that is substantially equivalent. That means that it 
would have to be stronger than current Montana law.
    Governor Racicot. In some respects. We believe it's 
obviously a great deal more specific in terms of desired and 
required results. And we believe that we can comply with those 
required results as long as we don't end up in a process that 
is so expensive and so time-consuming that we lose the ability 
to marshall all of those assets that we've had in the process 
from the beginning.
    Senator Baucus. It's a question we're going to have to 
explore with the EPA when they come up as later witnesses. But 
to me this is the crux of the matter.
    Governor Racicot. I would agree. I think that's right.
    Senator Baucus. Thank you.
    Senator Crapo. Thank you, Senator.
    Governor, just another couple of quick questions.
    EPA's budget includes $95 million for addressing non-point 
source pollution, including establishing and implementing this 
TMDL rule and dealing with BMPs and CAFOs and that amounts to 
about $2 million per State. My question to you is, if you have 
an opinion on that, is that sufficient for the States to carry 
out all of these programs?
    Governor Racicot. No. This is a massive new assignment for 
the States and that is not going to be sufficient for all of 
the States to undertake all the requirements that are 
specified.
    Senator Crapo. Thank you. And just one other question. I 
believe in your testimony you also indicated that you had 
concern with what appears to be the presumption behind the 
proposed TMDL rule, that the EPA has the ability to subject the 
States to its approval for their implementation and basically 
establish oversight over the States in their implementation of 
the TMDL requirements in the Clean Water Act. Could you 
elaborate on that a little bit?
    Governor Racicot. Well, it's just my belief that in the 
Clean Water Act, Congress hasn't authorized that kind of role 
to be played; and if that's the case, it needs to be 
specifically and precisely accomplished by Congress.
    Senator Crapo. Thank you very much.
    Senator Baucus. One question.
    Senator Crapo. Senator Baucus.
    Senator Baucus. Comment, please, on the Administration's 
proposal to appeal the current exclusion for silviculture 
activities which potentially treat many forestry practices as 
point sources rather than non-point sources, what effect is 
that going to have?
    Governor Racicot. Senator, I'm not familiar with that. I'm 
not certain that I can address that.
    Senator Baucus. I think it's not a good idea what EPA did.
    Governor Racicot. I'll accept that as my work assignment 
and report back to you.
    Senator Baucus. Good, thanks.
    Senator Crapo. Senator Wyden, do you have anything further?
    Senator Wyden. No, I just think that what the three of us 
are saying on a bipartisan basis is that we're not just going 
to say EPA is wrong, but we're going to work with Governors and 
innovators like you to come up with an alternative and that's 
why I wanted to suggest this three-part approach. And I think 
our colleagues may have other ideas and we're going to get 
after it. I mean, it's one thing to say you disagree with 
something, it's another in effect to put up an alternative.
    Governor Racicot. We would agree. We did not believe the 
EPA is just flat wrong in every respect either. That's why we 
assumed the responsibility before they even issued the order.
    Senator Crapo. Thank you very much, and Governor, we are 
very pleased with your testimony. In addition to identifying 
the concerns you have proposed solutions and we appreciate that 
very much. I echo the comments that have already been made with 
regard to your work on the Endangered Species Act. As you know, 
we've talked and we're going to be continuing that effort to 
try to bring some common sense into this process of trying to 
address environmental concerns in a way that helps us move 
forward rather than to engage in conflict. And with that we're 
not going to take you up on your gracious offer to keep you 
here all the way until 2 o'clock or a little later and we will 
excuse you, you can get on your way back to your home.
    Governor Racicot. Thank you, Mr. Chairman, very much.
    Senator Crapo. Thank you.
    Our next panel will be Mr. Chuck Fox, the Assistant 
Administrator for Water at the Environmental Protection Agency.
    Mr. Fox.

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

    Mr. Fox. Mr. Chairman, it's a pleasure to be here and I see 
that my presence has brought two other distinguished Senators. 
It's a pleasure that they joined us here.
    Senator Crapo. Bringing in the big guns I guess.
    Mr. Fox. Well, I do look forward to briefly summarizing my 
written statement. You raised a number of issues in your 
opening statement that I'd be happy to talk some more about in 
the questions and answers. I think we all know that we have 
made tremendous progress since the Clean Water Act was first 
passed by Congress in 1972, and by this committee, I would add.
    Our water is much cleaner today thanks to a team effort by 
Federal, State and local governments working with industries, 
and individual stewards of the land, such as farmers, ranchers 
and forest managers.
    But that does not mean that all the problems have been 
solved. An overwhelming majority of Americans--218 million--
still live within 10 miles of a polluted water body. Over 
20,000 water bodies do not meet water quality standards. We 
still have major work to do. And as you know the Clean Water 
Act provides us with a cooperative intergovernmental process 
for identifying and solving remaining water pollution problems, 
called the TMDL program or the Total Maximum Daily Load. A TMDL 
is a pollution budget for a specific river, lake or stream. It 
is a quantitative estimate of what it takes to achieve water 
quality goals. It is a program that is led by the States and 
communities because they're in the best position to make cost-
effective common sense decisions about how to best achieve 
their water quality goals.
    Recent history suggests that the quantitative approach to 
defining a problem and the bottoms up approach involving local 
decisionmaking will, in fact, achieve significant results. In 
the late 1970's the Great Lakes were in tremendous danger. In 
response the United States and Canada developed quantitative 
pollution targets just like the TMDL program.
    These numeric targets were included in the Great Lakes 
Water Quality agreement that was signed by the United States 
and Canada in the 1970's. That agreement laid the foundation 
for the restoration of Lake Erie and all of the Great Lakes. 
Similar efforts form the foundation of the Chesapeake Bay and 
Long Island Sound restoration efforts. In fact, the three 
Chesapeake Bay States are having tremendous success using 
numeric targets to guide a host of voluntary and regulatory 
pollution control programs.
    The existing TMDL program regulations were first developed 
during the Reagan administration and they lay out the basic 
process for implementing the TMDL program. As you know EPA has 
proposed revisions to the existing program requirements. EPA's 
new proposal was many years in development. Three years ago we 
convened an advisory committee to take an overall look at the 
program and to recommend needed changes. It was a diverse 
group. They didn't agree on everything, but their 
recommendations formed the basis for many of the changes to the 
program proposed by EPA this summer.
    The public comment period recently closed and we are now in 
the process of reviewing comments and finalizing the rule. You 
can trust that we will do our best to incorporate many of the 
ideas that we have heard, including some of those we've heard 
today so that we can produce a program that best serves the 
interests of the American public.
    I look forward to discussing with you and members of the 
committee these changes in more detail. But let me say this, 
the proposal was intended to honor and reflect what makes this 
program so affective to begin with. Namely, it is one led by 
States and communities from the ground up to solve water 
quality programs in common sense ways. If we did not succeed in 
achieving that goal with our proposal then we need to change it 
as we finalize it.
    Let me tell you briefly what the proposal does not do 
because I know this has been the attention of a good deal of 
criticism. The proposal does not require a Clean Water Act 
permit for non-point sources of pollution. It does not require 
Clean Water Act permit for the vast majority of silvicultural 
discharges. It does not create a program out of Washington, DC.
    Indeed, the program allows States to set their own water 
quality goals and develop their own strategies to meet them.
    On the issue of funding, which was a subject of good deal 
discussion before me in our fiscal year 2001 budget, the 
Administration has provided significant new funds to help the 
States meet these new challenges. We have increased the States 
grants by $45 million for TMDL development. We've also 
increased non-point source grants by $50 million. This 
compliments additional funds that have been provided by other 
Federal agencies, such as the Department of Agriculture.
    In closing, Mr. Chairman, the Clean Water Act set an 
ambitious goal of fishable and swimmable waters for all 
Americans. Some thought it impossible, but now it is within our 
reach. Together we've accomplished so much. We have the 
resources. We know what works, now let's finish the job.
    Thank you very much.
    Senator Crapo. Thank you very much, Mr. Fox.
    I'm going to turn to the chairman of the committee for the 
first round of questions.

  OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE 
                     STATE OF NEW HAMPSHIRE

    Senator Smith. Thank you, Mr. Chairman.
    [The prepared statement of Senator Smith follows:]

      Statement of Hon. Bob Smith, U.S. Senator from the State of 
                             New Hampshire
    Good afternoon. I would like to thank Senator Crapo for his 
leadership on this issue and for holding today's hearing on the 
proposed rulemaking by the Environmental Protection Agency on Total 
Maximum Daily Loads (TMDLs).
    I believe that I'm not overstating it when I say that this may be 
one of the most significant environmental regulations that this 
committee will address in the next decade. It is certainly an issue of 
vital importance to New Hampshire.
    New Hampshire is referred to by many as the ``Mother of Rivers,'' 
because five of the great streams of New England originate in its 
granite hills. We have 1300 lakes and 40,000 miles of rivers and 
streams that provide year-round fishing and recreation in scenic 
surroundings, as well as power for the State's many industries. New 
Hampshire also has about 1,600 certified tree farms covering 
approximately 850,000 acres of land.
    It is very important to me as a Senator of New Hampshire and 
Chairman of this committee that we make sure we protect both our 
natural resources for future generations and our businesses with sound 
scientifically based environmental programs.
    The Clean Water Act has been one of our most successful 
environmental statutes. Over the last 28 years, we have successfully 
identified and cleaned up many of the waters across the United States. 
We have achieved that partially through Federal regulations and 
permits, but also through State programs and partnerships with 
industries and private land owners. We've made a lot of progress, but 
that doesn't mean that we can't do more, particularly in the area of 
nonpoint source pollution. I believe, however, that we achieve better 
results if we work with the States and landowners, instead of against 
them, as EPA has done.
    There are three main concerns that I have with this proposal.
    First, we have seen great success with State and voluntary 
programs. We need to make sure that this proposal will in no way impede 
on their progress or create any unnecessary duplication.
    Second, we must make sure that any TMDL program is based on sound 
science. The GAO recently released a summary of a report that 
demonstrates that States don't have the data they need to implement 
TMDLs. In fact, only 6 of 50 States said they have a majority of the 
data needed to fully assess their waters. Without quality data we 
cannot implement this program.
    Third, everyone other than EPA, predicts this proposal will have a 
massive financial and resource impact on the States and private sector. 
We need to have a firm understanding of the cost of this proposal prior 
to implementation.
    And finally, a procedural point. EPA received over 30,000 public 
comments on its proposed rule. In addition, several House and Senate 
committees are holding hearings on this issue to better understand the 
proposal. It is my hope that EPA will consider seriously the written 
comments of all stakeholders and the concerns of the various 
individuals who are testifying at these hearings before it finalizes 
any rule. This is too important an issue to rush to finalize a rule for 
no reason.
    I look forward to hearing from all the witnesses and hopefully we 
can shed some light on what many feel to be a very confusing and 
troublesome proposed rule.

    Senator Smith. Mr. Fox, your comments in your opening 
remarks regarding TMDLs were very consistent with what 
Administrator Browner said a few days ago sitting in the same 
chair, that EPA would give credit to those States that have 
developed best management practices for activities such as 
logging. Now, my concern though is that notwithstanding your 
statements and Administrator Browner's statement, there is a 
conflicting message out there in the field and I pointed that 
out to Administrator Browner as well. Let me give you an 
example of that. A quote from Marie Eri, the former Chief of 
Northern California section of EPA's Region IX:

    We do expect implementation of non-point source TMDLs. Our 
regulations require the California Water Quality Control Board 
at some point to take that Federal TMDL and incorporate it into 
your basin plan. Now, what we do to get you to do that through 
all sorts of nasty little tricks with grants and such, I don't 
know. But it's not a place I want to go and I'm sure it's not a 
place you want to go.

    My question is: What's the policy? [Indicating document] Is 
it this policy, or is it what you're saying here at the table? 
And this is a real problem with me, because my credibility as 
the chairman of the full committee I speak for myself, but you 
can't operate in good faith with that kind of inconsistency. I 
mean the reality is that people, the foresters and the farmers, 
and those people who deal with non-point source point pollution 
as well as the States, when they hear that--and that's what 
they are hearing--it's pretty difficult to understand just what 
is going on. That's the source of the problem.
    Mr. Fox. Well, Senator, I don't know that individual, never 
met that individual. I can tell you----
    Senator Smith. It doesn't matter if you know them or not.
    Mr. Fox. But my point is what's in the proposal. I will 
stand by my testimony today and that of the Administrator. This 
is a proposal that does not include any new regulations for 
non-point source pollution. It is a program that we have 
designed to be led by State and local governments so that they 
can decide how to best solve these problems.
    Is it true that non-point source pollution is a problem in 
this country, that we need to do a better job of controlling 
it? Absolutely.
    Senator Smith. Sure, I agree with you.
    Mr. Fox. But the intent of our proposal is to give 
deference to State and local governments and their proposals to 
solve this.
    Senator Smith. But let me ask you specifically, does EPA 
intend to require States to incorporate TMDLs into their plans 
and apply them to forestry activities, yes or no?
    Mr. Fox. We expect that the States will include in their 
TMDLs programs to combat non-point source pollution.
    Senator Smith. Well, are you going to require them to 
incorporate TMDLs into their plans and apply them to forestry 
activities?
    Mr. Fox. We won't require anything of that specific nature 
in a TMDL, although we will ask ultimate approval to do this 
TMDL and the implementation plan achieve the water quality 
goals. If the State wants to do this all from point sources, 
they want to do it from agricultural sources, if they want to 
do it from silviculture sources, that's up to the State and the 
community. Our fundamental test is, will this achieve the water 
quality goals? We tried not to prescribe in any way, shape or 
form how they achieve that.
    Senator Smith. I find myself agreeing with what you're 
saying, but it's inconsistent with what's happening in the 
field. The States make----
    Mr. Fox. It is certainly inconsistent with a lot of the 
rhetoric I've heard and some of the fact sheets I've seen going 
around Capitol Hill, but it is not inconsistent with what's in 
our proposal, sir.
    Senator Smith. Thank you, Mr. Chairman.
    Senator Crapo. Thank you.
    Senator Baucus.
    Senator Baucus. Mr. Fox, could you comment on the issue I 
raised with Governor Racicot? Am I correct in believing that 
courts generally--I think I'm told 17--ruled that States have 
not complied with the Water Act with respect to TMDLs? Then the 
EPA issued regulations the end of last year. What do you think 
it takes to comply with the Act according to the courts' 
interpretation of the Act?
    Mr. Fox. This is actually the source of a lot of confusion 
and I appreciate the chance to clarify this. And it gets into 
some of the cost issues that have been raised. The TMDL 
provision was created in 1972. Our regulations are simply 
revising the existing regulations. The base regulations, in 
fact, came out of the Reagan administration. It was the Bush 
administration that revised those even more. There is a base 
TMDL program that is the law of the land. The courts are 
currently interpreting the existing regulations. The States are 
facing very significant resource implications even implementing 
the existing regulations, much less some of the additional 
issues in our proposal that we can talk some more about.
    The courts are typically finding that the States' TMDL 
efforts to date are inadequate based on the 1972 Clean Water 
Act. In general this is the challenge we face in water quality 
today. For so many of our waters in this country, we've done a 
good job of controlling the obvious sources of pollution, but 
we're not going to solve the remaining problems until we start 
looking at these less obvious sources--until we start making 
pollution budgets on a watershed-by-watershed basis. It's going 
to take a lot of time. Our proposal allows up to 15 years for 
TMDL development. These won't be solved overnight. But it's 
really, I think, a commonsense way of starting to solve this 
problem for the future.
    Senator Baucus. Now, is EPA asking for a reconsideration of 
at least the decision by the Federal District Court Judge in 
Montana on this issue?
     Mr. Fox. I'm not aware of that. I will check into that. 
Generally, these are typically schedule decisions where the 
court finds that EPA and the States have failed to develop 
TMDLs on a certain schedule and we get a court-ordered schedule 
that we have to develop a certain number of TMDLs in a certain 
time. Frankly, in most cases it's fairly obvious that the State 
hasn't met its obligation and we all have to just get together 
and figure out how to do this in a relatively quick period of 
time.
    Senator Baucus. Right. But you heard Governor Racicot's 
testimony and the comments, certainly, of Senator Wyden, so how 
do you solve this?
    Mr. Fox. Resources are, I think, a very key part of the 
equation. And I would be the first to admit that this is a 
fairly new investment that's going to be required in State 
programs and in Federal programs, which is why we included a 
fairly sizable increase in our budget for the TMDL program. I 
should say that the State-based Federal grant program is only 
$115 million. We increased this by an additional $45 million 
specifically for implementing TMDLs and I think that's a 
reflection of our understanding that the States are going to 
have to spend more money to do this.
    We've also provided more flexibility in the section 319 
program so that States can use some of those dollars to help 
with TMDLs. I can put together the overall figures, I don't 
have them here, but overall we are clearly making available a 
sizable new amount of money, more than was suggested earlier, 
available to States to solve this problem.
    Is it going to be enough? Well, the best analysis we have 
right now suggests it's going to put a good dent in the 
program.
    Senator Baucus. Besides the budget resource issue though, 
are we going to mesh the gears here?
    Mr. Fox. I think that some of the issues that you face now 
out West with the merging of the Endangered Species Act and the 
TMDL program are going to be very difficult. I couldn't agree 
more that the goal that Senator Wyden articulated is exactly 
the goal we want to have. That's simply good government, that 
these two programs work well together and that we can give 
landowners the kind of certainty that the decisions they are 
making are good for TMDLs and good for endangered species.
    Senator Baucus. I think we've gotten the goal, but how do 
we get there?
    Mr. Fox. That's very difficult on the endangered species. 
They are----
    Senator Baucus. I'm talking here on the TMDL right now. How 
do we get to conformance with the Clean Water Act?
    Mr. Fox. My hope is that we will be able to go through many 
of the public comments that we've heard, resolve some of the 
inconsistencies in places where people think things need to be 
clarified, make some changes where that's warranted and produce 
a product that is, in fact, in the best interest of the 
American public and it is reflective of many of the comments 
that we've heard over the past few years.
    Senator Baucus. Could you address the silviculture issue? 
It seems to me that EPA--I question EPA's legal authority to 
repeal that exclusion.
    Mr. Fox. First, I would like to say that forestry 
activities in general can be very good for water quality if 
they are properly done. It is also fair to say that poor forest 
management practices can, in fact, create very significant 
water quality problems.
     What we tried to do with our proposal was in our opinion, 
obviously, consistent with the law and I understand that 
there's a staff draft of materials from this committee that 
suggests or raises questions about that. We will continue to 
work with you and your staff to explain why we think we have 
the authority to do what we are doing.
    I hope we can convince you. We may or may not succeed in 
that. But basically in the 1987 amendments to the Clean Water 
Act this committee articulated a very clear position on storm 
water from activities like silviculture that create water 
quality problems. That's the part of the law that we are using 
to give us that authority.
    Senator Baucus. Yes, that's pretty weak, storm water. I 
mean, silviculture practices are a lot different from storm 
water. And that's the basis of--that's the main problem with 
that analysis, that it is based on 1987 storm water example.
    Mr. Fox. That's correct.
    Senator Baucus. I frankly believe that's pretty weak. Have 
you visited any of these sites?
    Mr. Fox. Sure. Well not in Montana, but I have in other 
States, yes.
    Senator Baucus. What's your impression?
    Mr. Fox. That a very well-operated silviculture operation 
can, in fact, have very beneficial effects on water quality. If 
it's not, I'll tell you, I've seen streams destroyed because of 
it.
    Senator Baucus. I'm not addressing that issue. I think we 
all agree with that. I'm just asking whether it's a point 
source or non-point source of activity, that's the question 
here. We have to solve this problem, I grant you, but I mean, 
to treat silviculture practices under the TMDLs is, I think, 
wrong.
    One final question. What lessons are there with the budget 
concept on the Clean Air Act and SIPs? Is that a fair analogy 
or not?
    Mr. Fox. In some ways it is a fair analogy. What the TMDL 
is at its core is trying to access the overall amount of 
pollution that a watershed can sustain. And can we then 
allocate those pollution loads, not unlike the way it is done 
in an air context of looking at mobile sources, stationary 
sources, and trying to figure out what is our ultimate 
environmental and public health endpoint.
    Hopefully you can make those decisions cost-effective. And 
you know that taking a pound of pollution from a point source 
might be more expensive than getting it from a non-point source 
and you can have local governments making those kinds of 
decisions.
    Senator Baucus. I urge you very strongly to try to find 
solutions here that do kind of take things more to a local 
level. Times have changed. The quality of personnel in States 
is much better than what it may have been in some States 30 or 
40 years ago, huge difference.
    Second, they know all the problems. And they know the 
solutions. And people living in all our States want to do 
what's right. They live there. They want clean water. They want 
clean air. And in fact, it's more important as years go by; and 
beyond that, it's going to have credibility if it's a local 
solution. Beyond that, the more we have top-down management, 
the more nothing happens in a certain sense because the 
national groups have ostracized it, in some respects to 
increase their membership to have something to talk about and 
shout about and so forth. Most people locally are less 
concerned about the shouting; they're more concerned about the 
solutions. They do want solutions. So I strongly urge you to 
think harder about finding ways to enable people locally to 
find ways to abide by the Clean Water Act, whether it's TMDLs 
or point, non-point or whatnot.
    If they're not doing it right someplace, then modern 
communications technology should be used so people get to know 
about it. And they're going to exert some pressure if the 
people are locally upset about what's going on. But the new 
paradigm is to rely more on local decisions.
    Mr. Fox. Well, I would say unequivocally that if this 
program is run by EPA, if EPA is doing TMDLs, we are failing. 
And it's that simple. I couldn't agree with you more. This has 
to be done by State and local governments if it's going to 
work.
    Senator Baucus. Let's just get out there and I know I'm 
taking too much time. Just one very small example here to give 
you real credit.
    In Montana, unfortunately, we've found a lot of people who 
recently worked in mines who had asbestosis or mesothelioma-
related diseases. It's a nightmare, an absolute nightmare. And 
I've asked EPA to send some personnel, and EPA has. And also 
out of Atlanta, the group that's affiliated--Cliff Clean Up. 
And let me tell you the people in Libby, Montana are very happy 
with what EPA is doing. You've got a guy there named Paul 
Perinoy, something like that. One hell of a guy. People think 
he's the greatest thing and it's because he's working so hard 
to help the people of Libby find out where the hot spots are, 
if there are any--air, water and ground--of asbestosis, and 
it's a local solution. He's working with people to find out how 
they can get--and it's wonderful, it's working. And I urge you 
to give him a promotion.
    Mr. Fox. Or maybe get him to talk to Senator Smith's 
employees.
    Senator Baucus. Send him to New Hampshire or something, but 
I tell you, you've got to clone this guy. He's doing one heck 
of a job.
    Mr. Fox. OK, thank you.
    Senator Baucus. It's an approach that is working, and it's 
local.
    Mr. Fox. Thank you.
    Senator Crapo. Thank you very much.
    I notice the vote was just called; however, Senator Thomas 
has been patiently waiting.
    Senator Thomas.
    Senator Baucus. I apologize.
    Senator Crapo. We'll give you some time to ask your 
questions before we break.

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

    Senator Thomas. I'll be brief. We've been through this 
several times. This is not the first time Administrator Browner 
was here. I was over to the Agriculture Committee last week on 
the same thing, on this rule, on TMDLs. When she was there she 
admitted the proposed rule is very complex and caused much 
confusion. She further indicated the Agency had not adequately 
explained the proposal. But she went on to say that they're 
unwilling to pull it back and do anything different about it.
    How do you explain that?
    Mr. Fox. This proposal has been literally many, many years 
in the making. We can all question whether or not there's been 
adequate public involvement. I respectfully think we have done 
a pretty darn good job on that. And I think frankly the 
Administrator expressed the view, which I obviously feel, that 
the time has come to finalize this. It's going to mean great 
benefits to the people of this country and I don't think that's 
something----
    Senator Thomas. Well, that's not shared by everyone.
    Mr. Fox. I understand that.
    Senator Thomas. If you understand. And other people do have 
the opportunity to have input into what we do in this 
government, I hope.
    Mr. Fox. Absolutely, Sir.
    Senator Thomas. Are you going recognize the functionality 
equivalent if the States are allowed to utilize a system that 
has produced results?
    Mr. Fox. This program, I would argue, is based on the 
concept of functional equivalency. We said clearly throughout 
this proposal that if a State has a better way of getting to 
that end point, that is absolutely OK. Our whole goal with this 
proposal has been to let the State and local governments 
determine how to achieve their water quality standards. I don't 
know how to get more functionally equivalent than that.
    Senator Thomas. Why do the State administrators then talk 
about the amount of money they're going to have to spend in 
order to meet your requirements?
    Mr. Fox. I think that's a very real issue. And I think it's 
going to require new investments from the States as well as 
from us at the Federal level. We have provided some more funds 
in our budget for the States. We have provided more funds in 
our budget for us. We can have a debate whether that's adequate 
or not. We are looking, I should add, Senator, at a 15-year 
timeframe. We don't have to do all these TMDLs next year. This 
really is a schedule over the next 15 years.
    Senator Thomas. Wyoming has implemented a 5-year 
comprehensive monitoring plan. Are they going to be allowed to 
continue to do that?
    Mr. Fox. There's nothing in this proposal to my knowledge 
that would in any way reject a State monitoring program. I 
don't know about EPA's approval of your State, but I can look 
into that and get back to you.
    Senator Thomas. OK, I'd appreciate that. Well, I guess you 
need to understand that we keep hearing these things. We hear 
from you how it's going to be up to the States to do it, all we 
do is measure the results. But that isn't what people think is 
happening on the ground. And I don't know how long we can have 
a different story here than we hear at home.
    Mr. Fox. One of the areas that I think is the source of 
this disagreement, if I might--and it's always hard to speak 
for somebody else--but we have laid this out and as I was 
telling Senator Baucus to have it be led by State and local 
governments. However, the statute is very clear that if for 
whatever reason the State and local governments fail to do X, Y 
or Z, then EPA has an obligation under the law passed by this 
Congress in 1972 to do a TMDL for a State. We have included in 
this proposal what we consider last resort backstop type 
proposals so that EPA would have to take some action in the 
case of a State failure.
    Senator Thomas. You're talking about a statute that lays 
out the rules for a non-point source?
    Mr. Fox. No, I'm talking about the statute that lays out 
the rules for TMDLs. It was included in, as I said in that 1972 
Act.
    Senator Thomas. Is there great dispute over whether you 
even have statutory authority to deal with non-point source?
    Mr. Fox. I think that's a separate question and I would be 
the first to say that the Agency has no authority to issue 
permits for non-point sources.
    Senator Thomas. That's what TMDLs are all about, isn't it?
    Mr. Fox. I would respectfully disagree. A TMDL is about 
establishing a load allocation for any watershed.
    Senator Thomas. I understand. But if you have point source 
and you've been able to deal with that in another way, when you 
have non-point source that's really what puts it into effect, 
isn't it? You haven't been using them for 15 years, since 1972, 
why are you just starting now if you didn't think it was a 
different, new approach?
    Mr. Fox. Well, again we're not starting anything here, 
Senator, this has been going on for some time. It was the 
Reagan administration that had the first regulations on this.
    Senator Thomas. Well, I don't agree with you, but go ahead. 
We'll have to somehow see if we can't get together on how 
people perceive what's going on here. You guys keep coming up 
here and talking about how the States are free to do what they 
want to; come with us to the States. They don't think so. Come 
with us to the conservation district that filed suit on this.
    Mr. Fox. Yes, we have received a lawsuit, not on this 
subject, but on another subject from the Wyoming conservation 
district, that is true.
    Senator Thomas. I know you have. Why do you suppose that 
is? If what you're saying is true, why would they file suit?
    Mr. Fox. They filed a lawsuit on the Clean Water Action 
plan from the President, that--and I don't remember all their 
allegations, but I think it was basically that the Clean Water 
Action plan did not comply with NEPA. We have, as I've told 
you, Senator, been able to get grants from the Clean Water 
Action plan to 49 States in this country. There's one State 
where we haven't been able to do that and I'm going to continue 
to pledge to work with you to try and find a way to get it in 
Wyoming. I don't have a good answer for why it's happened.
    Senator Thomas. You can get it if we do exactly what you 
tell us to do.
     Mr. Fox. We found ways in 49 States to implement this 
consistently.
    Senator Thomas. I hope you understand that what you say is 
nice and fine, but everyone doesn't accept that as being what's 
doing on the ground.
    Mr. Fox. OK.
    Senator Thomas. Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, we are getting to the 
point where all of us are going to have to go vote now and 
ordinarily we would try to stagger this, but we're going to 
have three votes in a row, and so I apologize that this is 
going to take at least a half hour and possibly 45 minutes for 
us to get these three votes finished. So Mr. Fox, but we're not 
finished with you yet. I want to come back and ask my 
questions, so I would recess the committee at this time. Thank 
you.
    [Recess.]
    Senator Crapo [resuming the chair]. The third vote was a 
voice vote and so we were able to get back here a little more 
quickly than we thought. I don't know how many of the other 
Senators will make it back or for how long because there are a 
lot of other things going on this afternoon, but then that just 
gives me more time to ask my questions so it's all right with 
me.
    Mr. Fox, one of the issues that I wanted to go into with 
you relates to this question of jurisdiction over TMDLs, excuse 
me, over non-point sources with regard to TMDL management. Now, 
I know that you've been saying that the Agency is not asserting 
jurisdiction over non-point sources. In fact, I think that what 
you said was that Clean Water Act permits for non-point source 
activities are not required. And that may or may not be the 
same as saying that the Agency is not asserting jurisdiction 
over non-point source pollution. Can you address that question 
for me? Is the Agency in any way asserting jurisdiction over 
non-point source pollution under the Clean Water Act, other 
than section 319?
    Mr. Fox. By jurisdiction I'm assuming you mean in the very 
broadest context.
    Senator Crapo. I do.
    Mr. Fox. In that context I think it is fair to say that we 
expect that a TMDL submitted by the States would include 
allocations for non-point sources where the State determines 
that appropriate, that a State needs to identify waters that 
are impaired by non-point sources as part of its submissions. 
But what I was saying before is that nothing in the Clean Water 
Act and nothing in our TMDL rule would require a State to issue 
a permit, take an enforcement action or do anything like that 
over non-point sources. Yes, we would require that States 
submit lists of waters that are impaired by non-point source 
pollution.
    Senator Crapo. Well, that was going to be my next question, 
because if the Agency is not requiring the States to issue 
permits or to take any specific action with regard to non-point 
source pollution, why would the Agency require the States to 
list bodies of water that are only now reaching non-attainment 
because of non-point source pollution?
    Mr. Fox. Two quick answers to that. First, we believe 
that's what the law requires and second we believe that it's 
only common sense that if we are going to try and achieve our 
water quality goals in this country, that we need to take into 
account point sources as well as non-point sources.
    Senator Crapo. Well, let me go through both of those 
reasons. Let me take them in reverse order. If one were to 
agree--and I don't disagree with you that it's good policy to 
try to address the quality of the waters from all perspectives, 
that's a very valid policy objective--but frankly it's not the 
prerogative of the Agency to determine policy. That's the 
prerogative of Congress and the President. And if Congress and 
the President have not given the Agency the authority to make 
those policy decisions, where does the Agency come off assuming 
that authority and saying, ``Well, it's a good thing to do, so 
therefore we ought to do it?''
    Mr. Fox. Again, sir, I wouldn't disagree with your 
characterization, you are correct. We certainly cannot do 
things that aren't authorized by statute, but I spent a good 
deal of time on this with our General Counsel and I firmly 
believe that the statute does give us the authority to list 
waters that are impaired by non-point source pollution.
    I know that there are some out there that disagree with 
that; this is the subject of some litigation. But the 
Government has filed very clear positions on this in various 
court cases that obviously are supported by the Department of 
Justice as well.
    Senator Crapo. Well, that was your first point so could you 
clarify that to me, because I think your first point was that 
the statute does give the Agency the authority to require at 
least a listing of non-point source water pollution. What is 
that statutory authority?
    Mr. Fox. It's under section 303(d) of the Clean Water Act 
and I could certainly have our General Counsel submit for you 
more information on that. The Government did file a brief on 
this very point in a case in California recently that probably 
articulates it in very exhaustive arguments.
    Senator Crapo. I would appreciate that. And not only that 
brief, but any other material you have that specifically 
identifies the statutory authority to require States to list 
non-point sources. And again I don't know that it's necessarily 
because it's bad policy, it's just a question of whether the 
Agency has the authority to assert that jurisdiction.
    Mr. Fox. OK.
    Senator Crapo. Assuming that you are correct there, and I 
don't agree with that, but assuming that you are correct, do I 
understand you to be saying that although the Agency has 
authority to require States to list non-point source pollution 
waters, that the EPA does not have any authority under the Act 
to require the States to do anything about it?
    Mr. Fox. I would say that slightly differently. The Act is 
very clear that the States need to develop TMDLs to achieve 
water quality standards. And the States need to implement 
programs to achieve water quality standards. And where the 
States fail to do that, EPA must do that. Obviously, if a State 
does it under State law, they're going to have perhaps a wider 
variety of tools to solve that problem than the Federal 
Government would if the Federal Government was forced to 
implement the program.
    Senator Crapo. You mentioned earlier in response to a 
question from either Senator Smith or Senator Thomas that there 
was a sort of a backstop in the proposed rule that may be 
causing some of the consternation, the backstop being what will 
the EPA do if the States don't? Now if the EPA is saying that 
non-point source pollution has to be listed, that the States 
have to achieve in those listed waters the standards, and if 
the States don't achieve those standards in those listed waters 
then the EPA will step in and achieve those standards. Then 
haven't you essentially through a somewhat circuitous, but 
nevertheless a very direct fashion asserted EPA jurisdiction 
over non-point source pollution?
    Mr. Fox. I would respectfully suggest no, because first off 
if we ever got to that point, as I said before to Senator 
Baucus, that is an absolute failure of the system and we're not 
doing our job right. Because the Federal Government should not 
be in the position of actually implementing these TMDLs, only 
as a last resort. If that happens, if we are in that very 
remote situation where we have to do it, we will not have the 
authority to obviously require any permit conditions for non-
point sources.
    We have grant programs that we can use to encourage further 
reductions of non-point source pollution. We have programs 
through the Department of Agriculture we might want to work 
with to solve some of these problems. And we'd have to cobble 
together some way of trying to solve some of these problems to 
achieve the goals without regulating--in a permit context--non-
point sources of pollution.
    But, again this would be the worst-case scenario, if you 
will, something that we don't want to see ever happen because 
that is a failure of the system if we end up in that position.
    Senator Crapo. Well let me explore this from just a little 
bit different perspective. Senator Thomas asked a series of 
questions, and the frustration that he has was evident with 
regard to the feeling that he's seeing that the EPA is 
asserting in an overreaching way authority over the States and 
local communities. Your response as has been as Administrator 
Browner's response consistently was that this proposed rule 
does not operate as a top-down rule and the States and local 
communities have the ability to find specific solutions.
    I had an opportunity several months back to deal with this 
in a site-specific situation in Coeur d'Alene, which you may be 
familiar with, Coeur d'Alene, Idaho. And not just Coeur 
d'Alene, but the entire basin, water basin there. And the 
question was, the standards by which the determination was 
being missed or whether the water satisfied the water quality 
standards and we got into the Gold Book Standards, issues which 
I'm sure you're familiar with.
    And in a hearing that our entire congressional delegation 
held in Coeur d'Alene, we had EPA officials with us and we had 
local city officials with us who were being required to do 
certain things with their water quality standards. And we had 
the Idaho Department of Environmental Quality officials with 
us. So we had everybody in the room and at different times at 
the table. And I got the same answer from the EPA that day that 
I got from you today and from Administrator Carol Browner last 
week, which is, the State has the ability to do this. When the 
State was sitting at the table I said to the EPA--I'm 
paraphrasing here, but I said, ``The EPA has just told us that 
you are the ones who decided to do this to us, to us people 
here in Idaho.'' And we've just had witnesses from cities and 
from local communities and counties saying what kinds of cost 
impacts all this was going to have on them.
    And I said, ``If it's you that is doing it to us instead of 
the EPA, then I want to know why.'' And you know what their 
answer was?
    Mr. Fox. ``The EPA made me do it.''
    Senator Crapo. ``The EPA made me do it.'' I said, ``Now 
wait a minute, you are doing it'' and they said, ``Yes, we are 
doing it.'' And I said, ``But if you don't do it then what will 
happen? If we don't do it the EPA has informed us that they 
will take it away from us and they will do it. And so either we 
will do what they tell us to do or they will do what they tell 
us to do.''
    Now, it seems to me that that is not exactly the kind of 
situation where you have the local authorities operating in a 
free system with a non-top-down driven solution being forced. 
In fact, the State officials in that circumstance said, ``If we 
could do what we wanted, we would not do this and we would do 
this other alternative which would keep the water clean and 
make it satisfactory and avoid all of these other onerous costs 
that are being imposed on us by what we have to do.''
    And frankly to me what I saw that day was a very rigid 
``one-size-fits-all'' solution being driven from a book, a Gold 
Book I guess they call it, that was forcing community after 
community in Idaho to do something that the State officials and 
the local officials said did not need to be done for the water 
quality and was going to drive up the costs dramatically to 
their communities. And at the same time that was happening the 
EPA was telling us that it was not a State--it wasn't a rigid 
``one-size-fits-all'' top-down bureaucratically driven 
decision.
    Now, can you comment on that? It seems to me that I can see 
the point that you're making because it is the State and local 
officials that are making these decisions, but I am also not 
convinced that the decisions that are being made are not driven 
from a top-down bureaucracy.
    Mr. Fox. Well, I've been to Coeur d'Alene, I'm not as 
familiar with the specific issues that you're speaking of here. 
I can tell you that I think the tension comes from what I think 
frankly is a very appropriate Federal/State structure that 
we've established in this country over the last 30 years. 
Whether it's the Clean Air Act, the Clean Water Act, the Safe 
Drinking Water Act, the Federal Government tends to establish 
under Federal law some basic performance, environmental 
performance standards that we as a Nation feel are appropriate.
    And then the EPA, our job is to work with the States to try 
and figure out ways to get to those ultimate Federal and 
environmental performance standards. We ultimately want to 
assure that the States get there, but we try to give them a 
fair amount of flexibility in how they get there. But you're 
right, there is a bottom line, if you will, that we do need to 
meet some basic environmental and public health standards; and 
in this case the Gold Book is, in fact, one of the 
articulations. And I'm not going to say that there aren't 
States that vary from it, but it is some of the best science we 
have as to what, in fact, levels of different contaminants are 
safe for public health and the environment.
    Senator Crapo. Well, I understand what you're saying and 
frankly it's a very good answer from the perspective of the 
EPA, but it doesn't change the fact that the Gold Book is a 
very--whoever wrote the Gold Book has never set foot in the 
Coeur d'Alene Basin I would be willing to bet, or if he did the 
Gold Book standard would be different for the Coeur d'Alene 
Basin.
    My point being, we had witness after witness of qualified 
people who work with water quality issues in the area, who 
testified to the fact that the standards being imposed through 
the Gold Book were so rigid that they could not be met, could 
not be achieved no matter how much money we threw at it because 
of the unique circumstances in the region. And if they were 
somehow met it would require the kind of resource expenditure 
that is beyond the ability of the communities.
    Mr. Fox. What I just wanted to check here with staff is the 
way the water quality standards program runs. In fact, in many 
of the Federal programs there is a ``Gold Book,'' if you will, 
of minimum Federal standards. And we developed this because the 
States have asked us to use Federal resources and science to 
get some good national base-line. The Clean Water Act actually 
has a number of provisions that allow the States to depart from 
these based onsite-specific considerations.
    I know for example in my home State of Maryland, in an 
estuary environment, copper and cadmium act very differently 
and they don't have the same end point. And a number of States 
ask to----
    Senator Crapo. A good example.
    Mr. Fox [continuing]. Get variances from the Gold Book 
based on some site-specific considerations and we then approve 
those, assuming they are scientifically justified. There are 
also bacteriological standards. For example, if you are in the 
Anacostia River, right here near Washington, DC. where there's 
not a lot of swimming going on, the ultimate bacteriological 
standard might be very different than if you were at a beach in 
Ocean City, MD. And those are some of the flexibilities that 
States are allowed to move off the Gold Book numbers--with 
justification, I would add.
    Senator Crapo. And I understand that and, in fact, that 
information was also presented at the hearing by our EPA 
officials, but there's always a wrinkle. And here's the problem 
and the reason I'm tediously going through this with you, to 
help you understand, if you will, at your administrator level 
why it is that you can say the things you're saying and you 
understand all these flexibilities that exist, but they don't 
exist in the real world--or at least they are not being allowed 
to, because I'll tell you what we've just dealt with.
    We were told the Gold Book has the ability to be deviated 
from and there can be exceptions made. And the witnesses at 
this hearing that we held basically said, ``All of the 
justification and the data is in place for us to be off the 
Gold list and let us do a site specific standard for this area 
that we could achieve,'' which is what our local officials were 
saying is what we would like to do, and frankly, I recall that 
the EPA officials who were there were not really disagreeing 
that that would be an acceptable outcome. But I don't know that 
hearing has been 6, 8 months ago now. We're still on the Gold 
Book and we can't get off it. And this process, this so called 
flexible process to allow for variations, is certainly not 
flexible. I can assure you of that because my office has been 
working very aggressively for months now to try to just get 
through the administrative morass that would allow us to get 
this permission from the Agency to move to some different 
standard.
    Now, I do understand and I have to give credit here that we 
have succeeded in getting this issue to the higher and higher 
levels at the EPA and I understand that if what we are being 
told is correct, that it is now going to be made possible for 
the State of Idaho to put together a site-specific standard in 
this region and not be limited to the Gold Book standard.
    And I'm going to be very excited when that day comes. I 
wanted to go through this with you to let you know that in this 
particular case it has taken very aggressive attention from at 
least one U.S. Senator, from the entire Idaho delegation, 
holding hearings in the State of Idaho, as well as local 
communities pushing to try to get this flexibility to actually 
exist. I want you to know first of all that when you testify to 
us that it isn't really a top-down driven system, and when we 
say we don't believe you, that's why, because we've had 
experiences like this.
    Mr. Fox. I see.
    Senator Crapo. That goes on and on and on. And so if 
anything can be done from your level to assure that the 
procedures are commonsense procedures that are not there in 
name only, but are in reality, the flexibilities that do give 
State and local officials the ability to make the commonsense 
decisions, then perhaps we can find the common ground to move 
forward. I think that's exactly what Governor Racicot was 
talking about here at a larger level of the State's program 
versus what they perceive is going to be imposed on them 
through the TMDL rules.
    So anyway, if you'd like to comment further?
    Mr. Fox. Let me just say that I've learned a lot here today 
and I think the issue you raise is a very real one, 
particularly with the example that Senator Smith gave about an 
EPA employee. As we implement this and we haven't made any 
decisions yet and we are going to continue to have input, but 
we probably need to be very clear with all of our employees 
about the different flexibilities that are available and make 
sure that they understand our position on this so that we don't 
have, in fact, these situations where some employees are 
suggesting that we don't have quite the flexibility that we 
intended.
    Senator Crapo. Well, I understand that and appreciate that. 
And I don't want you to understand from my comments here today 
that I felt that the local EPA officials were doing anything 
like that. In fact, in their testimony they were being very 
honest and direct about the statutory authorities and what 
would happen and wouldn't happen if certain things developed. 
But I'm not even sure that your local EPA officials have the 
ability to break this system into the flexibility that it needs 
to have. So there has to be a fix here, and I'm not sure just 
exactly where or how.
    One of the key problems that I see is along the whole chain 
is that this circumstance that you described exists. And this 
is, if the State or the local community doesn't jump through 
the right hoop in the right way, doesn't set the standard in 
the right way, doesn't put the implementation plan together in 
a way that the EPA agrees will work, there's always that gun to 
the head, that the EPA is there to do it for you if you don't 
do it the way they tell you to do it.
    And that core structural part of the process is 
antithetical to local decisionmaking. I have to tell you, if 
the EPA wants to truly address creating a system in which we 
stop being a top-down driven system and let States and local 
communities resolve these issues, then they've got to be 
willing to let the States and local communities resolve the 
issues.
    Now, I understand that there may need to be standards set 
and then see if the States and local communities can meet those 
standards. The experience I had with the Gold Book standards 
tells me that even just that process can eliminate all 
flexibility if it's too rigid.
    So again I'm sorry for being so thorough with this, but I 
wanted you to just understand one experience that I've had with 
this that causes me to be somewhat suspect when I hear that 
we've got a flexible State and local community-driven system in 
place.
    Mr. Fox. Well, I won't say anything that will certainly 
contradict your experience here, but I would say that the 
situation in Coeur d'Alene is somewhat unique, apart from what 
we face nationwide, and we can hope that we don't have those 
all over the country.
    Senator Crapo. I hope not.
    Let me go on for a moment. The EPA has proposed to include 
waters that are threatened that are in the TMDL program. And 
these are waters that are currently meeting the water quality 
standards but for which readily available data demonstrates a 
trend that would indicate that the standards might be exceeded 
in the future.
    And the FACA group recommended that these waters be put on 
a separate, different list. There are a few concerns that some 
of us have with listing these waters for TMDLs, and Congress 
has expressly authorized the EPA to require this only for 
impaired waters because the other waters are already meeting 
current standards.
    How does the EPA get the jurisdiction to list threatened 
waters?
    Mr. Fox. First I would say that the current regulations in 
place that predate this Administration included threatened 
waters and this is an area that we are taking comment on and as 
a result of comment, the public comment period, we may or may 
not make a decision to include threatened waters.
    And the logic behind it, if you will, was simply that there 
are going to be some water bodies that very soon might be 
needing a TMDL and we need to keep track of these just so that 
we don't lose them in the system. If we can solve a problem 
today, that's a better deal than trying to solve it tomorrow 
when it might be much more expensive and difficult to solve.
    Senator Crapo. Well, again, that might make sense in common 
sense approach. And the fact that the previous regulations 
covered it doesn't necessarily mean that they legally covered 
it. Can you give me any legal justification for asserting 
jurisdiction over threatened waters?
    Mr. Fox. Let me get my General Counsel to get back to you 
on that one.
    Senator Crapo. OK. I'd like to see that.
    Mr. Fox. OK. I found myself trying to pretend I'm a lawyer 
and I realize I shouldn't. I'll just turn to the General 
Counsel.
    Senator Crapo. Well, if you don't know the answer, you are 
wise not to try to say it.
    In its proposal the EPA states that it would:

    . . . only invoke the rule in rare circumstances and then only when 
there's no reasonable assurance that the silvicultural sources would 
obtain TMDL load allocations. And the Agency suggests that the rule 
would not be invoked in States that have forest practice laws or 
otherwise enforceable best management practices, the BMPs, suggesting 
that these programs provide reasonable assurance. the Agency therefore 
assumes, in a way, any potential economic impact for some 32 States 
that have currently or are expected in the future to have enforceable 
BMPs.

    Let me stop right there and ask, am I correct in assuming 
that the Agency is going to accept a States enforceable BMPs as 
reasonable assurance?
    Mr. Fox. That is among the issues we are considering right 
now as we go to final. I think it's fair to say that the rule 
was not particularly explicit on that point, but that is among 
the factors that we are considering as we go final. It is 
certainly our intent that this was not going to apply if 
there's no problem. And if in fact a State has a good program 
that is solving the problem this wouldn't apply. But I'm not 
sure we specifically connected it to the adequacy of an 
existing State forestry program.
    Senator Crapo. Well, I think that might be one area in 
which the question of whether you can truly trust a State will 
show whether the EPA is willing to give the State those 
decisionmaking authorities, because if a State has created its 
BMPs and the EPA won't even let that be reasonable assurance, 
then that tells me that basically we've just got an overseer 
and we might as well let you guys do it all.
    Mr. Fox. You're going to have a representative from the 
State forestry industry on your next panel and I'll be 
interested to listen to what he says on this point.
    Senator Crapo. And in this context, in which States do you 
think the rule would be invoked either by the State NPDES 
authority or by the EPA? And what I'm getting at is, would it 
be applied in important timber producing States like Oregon, 
California, North Carolina or 20-plus other forestry States?
    Mr. Fox. The way the rule was structured, first off, 
nothing would be applied unless the State had identified a 
water that was impaired by silviculture. And I just don't have 
the data here but I can certainly give it to you as to which 
States have identified problems of silviculture. And then the 
second part was the economic analysis we did. It didn't get 
into really identifying which States and which watersheds this 
would be applied to. And I'm not sure we actually have real 
good information on that. Because so much of that is going to 
depend upon what a State ultimately decides to do.
    Senator Crapo. Well, included in the States that I believe 
were omitted from the impacts in the EPA's economic assessments 
are five States, including Idaho, that aren't currently NPDES 
authorized by the EPA, and that's Alaska, Idaho, Maine, 
Massachusetts and New Hampshire.
    And the question I have is, how can it be assumed that the 
EPA would not use its authority in these States when the Agency 
already administers the NPDES program directly there?
    Mr. Fox. It would be dependent--I just have to look at the 
data to see if Idaho had any waters that were impaired by 
silviculture, and I just don't know the answer to that 
question.
    Senator Crapo. But if they did and the Agency were to 
assert its existing authority, wouldn't it be generating costs?
    Mr. Fox. It would have to be. There would be a few other 
steps in that process. First is, are they impaired by 
silviculture. Second, is the State program adequate to resolve 
those impairments. And then third, if that's not the case and 
the State has refused to do that and EPA then had to step in 
and require best management practices to be put on some, then 
those would be costs. And the way we costed our rule, it was 
that scenario that ended up coming up with our figure of the 
estimate of the cost.
    Senator Crapo. If I understand how you have done that, you 
must have assumed that each of those situations that you just 
described were the case because you came up with no costs.
    Mr. Fox. For Idaho?
    Senator Crapo. Am I right about that? For those five 
States, that's right.
    Mr. Fox. All I remember is--I'm sorry, the aggregate was 
about a $10 to $11 million--$10 to $12 million national cost, 
600 silviculture permits, but I can get you more specific 
information there.
    Senator Crapo. If you would I would appreciate that.
    The EPA states that:

    The potential economic impact of the proposed rule would 
not exceed $4 to $13 million annually, and that at most 18,000 
landowners would be affected. the Agency estimates that the 
regulatory cost per owner would amount to no more than $88 to 
$163 per harvest event.

    Isn't it likely, though, that in order to obtain an 
approved NPDES permit a landowner would probably have to submit 
documentation specific to the TMDL and water body involved and 
would have to hire a consultant to prepare the application and 
monitor the activity, would have to respond to and mitigate any 
concerns of the approving agency, the EPA or whoever was the 
approving agency, whether those were real or perceived? And 
then would have to await the approval process and delay their 
operation until approval is granted?
    Mr. Fox. Respectfully, Senator, I hope you appreciate this. 
Many of these cost analyses were done by a team of economists 
and I'd respectfully suggest that they could do a better job of 
answering as to their assumptions than I could do here for you 
today. If I could respectfully furnish that to the committee, 
I'd appreciate that.
    Senator Crapo. Well, I would like that because it seems to 
me--and you know you're going to hear it; you've already heard 
it through the 30,000 comments that have come in--that $163 
cost estimate for someone who's going to have to go through 
this process is vastly underestimating what is really going to 
happen out there. And it causes great concern to me to see that 
because the numbers that the Agency has used have put it below 
the Federal mandate statute so that they don't have to comply 
with other requirements. And I'm concerned about that.
    Mr. Fox. Yes, I can tell you that wasn't the intent of 
bringing the numbers down. And if anything, what I remember 
having a good feeling about, looking at those numbers when the 
economists produced this, was this was showing to me that the 
impact of this was going to be relatively small. I don't want 
to belittle even these costs, but it wasn't our intent that 
many silvicultural operations would at all be affected by this. 
The Federal Government would step in only where States failed 
to do so. And it was our intent that this would be used very 
minimally and that's generally what these costs showed. But I 
can get you more specifics about the estimates and how far they 
amortized them because I'm sure that's some of the issues, 
whether these were annual cost over 20 years.
    Senator Crapo. That's very much the issue.
    Mr. Fox. Senator, one additional explanation I would just 
offer on the permitting approach for silviculture is that we 
have assumed that this would fall under what we call our 
general permitting practices. And typically a general permit is 
very different from what we consider an individual permit. And 
the way these work is that they end up putting in a State 
regulation or in Federal regulation the broad kinds of best 
management practices that should be implemented. There 
typically isn't an individual site visit. It is simply that a 
landowner agrees to abide by these best management practices, 
and that's how we streamline the bureaucratic process for 
implementing this.
    Senator Crapo. All right. And I hope those kinds of 
streamlining efforts are successful.
    Let me just go through a couple more questions. One of the 
major controversies as you know in this proposal is the 
question of what is a point source and what is a non-point 
source, and this is particularly relevant in the issue of 
silviculture. Businesses and landowners, I think, have to have 
some kind of predictability as to how their activities fit into 
the structure of the Clean Water Act. What is the EPA doing to 
clarify this issue?
    Mr. Fox. This is an area that has come up repeatedly and I 
think it's fair to say is an area that we're going to need to 
clarify as we go final. I think people expect and deserve that 
we are clear about how this proposal would affect them or not. 
We have tried very much to track the statutory definition of 
what constitutes a point source or a non-point source and 
basically you need to have a point. It has to be a culvert, a 
drainage ditch, something like that for it to constitute a 
point source. And that would be a first threshold level about 
whether this program would ever affect any operation. Was it, 
in fact, a point source? And if it wasn't a point source, it 
wouldn't be affected.
    Senator Crapo. I know that a year or two or so ago the EPA 
was apparently considering a regulation to clarify this. Has 
anything come of that, is the EPA planning on putting out any 
further information or guidance on this issue?
    Mr. Fox. On what constitutes a point source versus a non-
point?
    Senator Crapo. Yes.
    Mr. Fox. That one I'm not familiar with. I'll have to 
answer that one for the record too, I wasn't aware of a 
regulation on that.
    Senator Crapo. OK. I don't think one was ever actually 
proposed, but at least we were under the impression that one 
was being considered at some point. From the looks on your 
faces----
     Mr. Fox. I'm getting fuzzy looks from people but that 
doesn't mean that somebody wasn't considering it. I will look 
into that.
    Senator Crapo. Well, we wish they were.
    Let me clarify your last question or your last answer that 
you added. It's my understanding that you can't use general 
permits when the Endangered Species Act is at issue or 
endangered species are present, is that correct?
     Mr. Fox. That would be news to me. We certainly have 
issued many general permits in areas where endangered species 
are present. But I can look into this. I know on a lot of 
concentrated feeding operations it's very common for a State to 
issue a general permit. For a lot of storm water operations 
States issue general permits. It's fairly common. In the air 
program they use general permits all the time.
    Senator Crapo. OK, hold on 1 second.
    OK, the point is that you have to do consultation at that 
point as to how would a general permit be operable if you have 
to do the consultation under the section 7 of the Endangered 
Species Act.
    Mr. Fox. Typically the way this works--and I will get more 
information on this--but the consultation occurs as the overall 
general permit is developed, should the services require or ask 
for consultation to occur. So as an example if you are 
developing a general permit for charbroilers, McDonald's Clean 
Air Act permits and they're all going to apply under the same 
rules, the services could request consultation at that time as 
the permit gets developed. But then as the McDonald's comes in 
or a Wendy's comes in----
    Senator Crapo. Then they don't have to go through the 
consultation again.
    Mr. Fox. Right.
    Senator Crapo. All right.
    As you may be aware I'm pretty interested in the HCP 
program and we may be looking at trying to put together some 
targeted legislation to help facilitate the development of 
Habitat Conservation Plans. If a company or an individual 
dealing with water quality has an HCP, would that serve as the 
functional equivalent of the TMDL, or will the proposed rule 
override the HCP and force renegotiation of the HCP?
    Mr. Fox. Our hope is that we can do these together. There 
is one fairly successful model that happened with the Simpson 
Paper Company in Washington State where they put together a 
series of proposals to meet their Endangered Species Act 
requirements as well as the TMDL program. The ultimate test 
that we care about under the Clean Water Act is, will this HCP 
help us achieve the water quality standards? And if we can find 
a way that these two programs can work together we can get to 
that end point, I think, together.
    In the case of forestry operations typically what this is 
going to mean is we will work with the company to figure out 
what is the right buffer strip requirement that will yield a 
certain pollution reduction that will get your water quality 
standards at the same time that this buffer might be protective 
of salmon, say, for example.
    Senator Crapo. What if an HCP was put together before a 
stream was listed and then the Agency comes in after the fact 
and you've got an existing HCP in place?
    Mr. Fox. That's an area that we're going to have to work 
with, but to the extent that an HCP does not achieve our water 
quality goals or standards, then we might have to revisit that 
to assure that it can be done. I'm certainly open to ideas 
about how to make these work together, but as the manager for 
the Clean Water Act I ultimately need to find a way that we can 
get to those Clean Water Act goals, too.
    Senator Crapo. Just thinking about it, it seems to me that 
if the noncompliance is not related to the activities that the 
HCP deals with, then there may be a way to be more flexible 
with that. But if the noncompliance is related to HCP 
authorized activities, then we could have a problem. Because 
one of the issues that I'm sure you're aware of under HCP 
reform is to try to figure out a way to get certainty.
    Mr. Fox. Right.
    Senator Crapo. So that we have benefits.
    Mr. Fox. And I would agree absolutely that that's a great 
goal. That's the example of the Simpson Paper Company that I 
mentioned. That was one where we were able to provide certainty 
to the company for the long term. In Washington State there's 
another model; the State passed recently a State law, the 
Timber, Fish and Wildlife Act, that established some statewide 
performance standards for timber operations on private lands.
    We have tried to work with them to give them some certainty 
with respect to this program within the TMDL program. And in 
fact, in Washington State I think we have set up a policy where 
they do not have to have TMDLs on these lands for 10 years 
until we see how well it's implemented.
    Senator Crapo. All right. Well, I'm sure you're aware of 
this, but I want to restate that that's a very important issue 
to me and I would like to keep in contact with you as we move 
forward in the development of our legislation as well.
    Mr. Fox, I have literally a stack of other questions here 
that I want to ask you, but it's 3:20 and so you're going to 
luck out with me, I guess. I will submit these questions to you 
in writing and ask for your prompt response to these questions.
    Mr. Fox. You will get that.
    Senator Crapo. That's right, I should remind you that we 
are going to have you back before us again hopefully in another 
hearing on this issue, one of our series, at the same time that 
we're going to have the USDA and Department of Defense in to 
comment on the some of the concerns that they have raised in 
the past with regard to it. So I might have another opportunity 
in person, but we do want to submit these to you in writing.
    Mr. Fox. Always a pleasure.
    Senator Crapo. And there is one other question that I was 
going to ask at the beginning and they want to make sure I 
don't forget to ask you, which is probably the most important 
question to ask. And that is, what is the timeframe that the 
Agency is looking at right now--we heard June--that the Agency 
is going to proceed? Frankly, as I said in my opening 
statement, I think that that is far too aggressive and that 
with a whole litany of circumstances that I described in my 
opening statement it would not be prudent for the Agency to put 
this on the fast track and move it ahead that fast. I mean, you 
just heard Senator Wyden talk about trying to put together a 
compromise here among the Senators as an approach, and he and I 
talked on the floor during the break while we were voting about 
working on something like that. But if the Agency moves ahead 
on such a rapid pace, then it may force us into action or it 
may force other responses that are not necessary.
    And so I'm asking you, what kind of a timeframe do you 
expect to work on at this point?
    Mr. Fox. The draft schedule worked up with staff is for 
final promulgation at June 30. I will say that if you would 
like to engage in some discussions on this I will certainly 
make myself available and do any kind of consultation with you 
that you think is appropriate to talk more about some of these 
issues. We truly haven't made any decisions on this. But out of 
respect for a lot of the time and energy that a lot of people 
have put in this, I really think it is important that we can 
bring this to closure at some point soon.
    And as we all know, things change by the end of this year 
and my hope was that we could get this done before things start 
changing in this town and try and keep it out of so much of 
those cycles that tend to happen at this time.
    Senator Crapo. Do you feel that you can adequately review 
and respond to the comments, the 30,000 comments that have been 
made, by that time?
    Mr. Fox. You should know that of those 30,000 comments, 
more than about half of them were postcards. Of those 30,000 I 
think there are approximately a little over 2,000 individual 
separate comments. So I'm not going to belittle them. I don't 
want to suggest for a minute that it isn't important, but I 
think we can process and respond to and consider adequately the 
comments that we've heard.
    As you know and as you mentioned, the Federal Advisory 
Committee began on these issues in, I guess it was almost 4 
years ago, and so there's been a lot of thought given to this. 
I think we can do it and respect the process.
    Senator Crapo. It's my understanding that OMB review of 
these kinds of rules takes 3 months, a rule in this kind of 
circumstance.
    Mr. Fox. That is typically the standard, but on a rule of 
this importance I will be talking with the Office of Management 
and Budget to see if we can get some compromise there and see 
if I can expedite that review, but I respectfully have not had 
all those discussions with the right people at OMB yet. But I 
guess now I will have to, later this afternoon.
    Senator Crapo. Well, it sounds to me like you're creating a 
fast track and I have been strongly encouraging you not to do 
that. I think OMB needs that time. I think frankly you need 
more time; you and the Agency need to address these issues. And 
I'm not really talking about the day-to-day function of 
evaluating the comments and all that so much as I am talking 
about the fact that we have a tremendous amount of concern 
across this country that has been expressed.
    As I said in my opening comments, again, there have been 
five hearings in Congress on this and you're going to see more.
    Mr. Fox. I've been to every one.
    Senator Crapo. Yes, you're painfully aware of them, I'm 
sure. And when I walk down to the floor for this vote, I was 
asking them at the desk, how long is this going to take and are 
you going to shorten the next vote so I can get back? And 
somebody said, ``Yes, what are you doing?'' And I said, ``We're 
holding a hearing on TMDLs.''
    Everybody--there were about 8 or 10 people standing 
around--every person knew what I was talking about, because 
this is an issue that across America is raising a tremendous 
amount of concern. So I would just encourage you not to fast 
track this and to give it the time that it takes.
    Mr. Fox. OK, thank you.
    Senator Crapo. As I said I've got a lot of other questions, 
but I'll have other opportunities and I will submit some to you 
in writing and I thank you for coming here today, Mr. Fox.
    Mr. Fox. I look forward to seeing you again.
    Senator Crapo. Thank you.
    Our next and final panel will be the Honorable William 
Nielsen, city council president from Eau Claire, WI, on behalf 
of the National League of Cities; Ms. Jamie Adams, the 
secretary of the Kansas Department of Agriculture, on behalf of 
the National Association of State Departments of Agriculture; 
Mr. J. David Holm, the director of the Colorado Water Equality 
Control Division in Denver, CO, on behalf of the Association of 
State and Interstate Water Pollution Control Administrators; 
Mr. Warren E. Archey, Massachusetts State Forester, on behalf 
of the National Association of State Foresters; and Mr. Richard 
A. Parrish, the Council for the Southern Environmental Law 
Center in Charlottesville, VA.
    These are very critical issues and it's important for us to 
spend the time on them. As you probably are aware and can see, 
we could spend hours with agency officials on these issues, so 
I appreciate your forbearance.
    I believe that each of you have been notified that the 
rules that we operate under here are that you have 5 minutes to 
present your testimony verbally. And I ask you to please try to 
follow that or the hearing will really drag on and others will 
not have the opportunity to present their materials as well. 
That will require you--I rarely see a witness who can say their 
whole piece in 5 minutes. Please understand that we understand 
that, and we do read your written materials very carefully. I 
know that the staff here reviews them and outlines them in 
detail. I read them personally and most of the Senators do. And 
we do want to have time for give and take and question and 
answers as well. So the green light is for go. Yellow means 1 
minute, right. When the yellow light comes on there's 1 minute 
left. And when the red light comes on I ask you to please try 
to finish up your thought and wrap it up even though you may 
not be finished with everything you have to say and I'll 
probably give you some opportunities in the questions to pitch 
in and finish up any thoughts that you didn't get in.
    So with that why don't we start in the order that I went, 
Mr. Nielsen.

       STATEMENT OF WILLIAM NIELSEN, COUNCIL PRESIDENT, 
                         EAU CLAIRE, WI

    Mr. Nielsen. Mr. Chairman, thank you very much for this 
opportunity to address your committee today. I have submitted 
my testimony in writing and I will just give a brief summary 
and try to emphasize some points that were mentioned there.
    As stated I'm the city council president from Eau Claire, 
WI. Ironically, Eau Claire in French means clear water. I'm 
here today representing----
    Senator Crapo. Can I interrupt you for a second? Have you 
ever heard of place called Owen Withee, Wisconsin?
    Mr. Nielsen. Yes.
    Senator Crapo. That's where my wife is from.
    Mr. Nielsen. So she knows we have clean air, clean water 
and lots of cows.
    Senator Crapo. That's right. In fact, she says those two 
towns were so small they had to put them both together to have 
a school.
    Mr. Nielsen. Senator, are you taking some of my time here 
or do I have----
    Senator Crapo. No, I'll give you extra time.
    Mr. Nielsen. I also serve on a policy committee for the 
National League of Cities, The Energy Environment and Natural 
Resource Committee and I also had the pleasure of serving on 
the Federal Advisory Committee on TMDLs.
    Let me first State that NLC and all of its members strongly 
support the goals of the Clean Water Act.
    Throughout the past 25 years the Federal Government and 
local governments have worked in a strong partnership to 
address many of our Nation's water quality problems. 
Unfortunately, we believe the rule that is being proposed will 
no longer recognize that partnership. It may very well place 
much of the burden for solving these problems on the local 
government.
    As you stated earlier or as previous witnesses alluded to, 
the Federal Government generally tells the State government 
what to do. The State government generally tells the local 
government what to do. And we're the ones that not only have to 
do it, but figure out a way to pay for it.
    Some of our concerns on these rules are that they may have 
a severely limiting effect on growth on the local level. 
Economic development is an important issue on the local level. 
They have both intended and unintended consequences. These 
regulations may encourage businesses to relocate in undeveloped 
and more pristine areas.
    Under this proposal it will be difficult to comply with 
some of the agreements that we presently have with the Federal 
Government in relation to combined sewer overflows, sanitary 
sewer overflows and our storm water program. The cities 
presently are in the process of committing our resources to 
deal with the storm water program. The Phase 2 regulations were 
just published in October. And we're somewhat concerned with 
how the new TMDL regulations will be compatible with the 
agreements that we have under those regulations.
    We believe it would, for example, be very difficult to 
comply with the diversion of storm water to treatment 
facilities when we're limited to the loads that we currently 
have at those facilities. As mentioned earlier, we're very 
concerned with who pays under this program. We're very 
concerned with some of the trading provisions. The burden for 
the non-point pollution that lies outside of our boundaries may 
be shifted. The financial burden for solving that problem may 
be shifted to local ratepayers and taxpayers under this 
program.
     The new proposed rules I think will generate a 
considerable amount of endless legal activity and this will 
fall primarily on the NPDES permit holders.
    Again under the trading program, those who are regulated 
under statutory control, who hold permits, will be responsible 
for trading with those for whom compliance is voluntary. Any 
enforcement action therefore will fall on those who are holding 
permits. We find this very troubling.
    NLC would recommend that the following changes be made to 
the rules. The offset requirements should be entirely 
discretionary for municipal facilities and offsets should only 
be allowable where it can be demonstrated that such a policy is 
appropriate and will not have adverse unintended consequences.
    All Phase 1 and Phase 2 municipal storm water permits 
should be exempt from TMDL requirements. We also believe that 
general permits as currently designed should remain EPA's 
primary recommendation to permitting authorities as the optimal 
mechanism for municipal storm water discharges. TMDLs should be 
applicable only to water bodies that are determined to actually 
be impaired by water quality data that is quality assured and 
quality controlled.
    Thank you very much for this opportunity and I would 
welcome any questions that you might have.
    Senator Crapo. Thank you very much, Mr. Nielsen.
    Ms. Adams.

   STATEMENT OF JAMIE CLOVER ADAMS, SECRETARY OF THE KANSAS 
     DEPARTMENT OF AGRICULTURE, ON BEHALF OF THE NATIONAL 
        ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE

    Ms. Adams. Thank you, Mr. Chairman. I appreciate being here 
today. My name is Jamie Clover Adams. I am the Kansas Secretary 
of Agriculture and I appear today on behalf of the National 
Association of State Departments of Agriculture and my 
colleagues from across the country.
    Like all the previous speakers have said we too desire to 
improve the Nation's water quality. However, we are greatly 
troubled by the TMDL rule. We have four major areas of concern. 
One is that we believe that it exceeds EPA statutory authority. 
We disagree with EPA's current position that the Clean Water 
Act provides ample authority to regulate non-point sources of 
pollution.
    And we believe the legislative history is clear. In fact, 
when I was preparing for this testimony over the weekend I 
pulled out the brief that EPA filed in our lawsuit in Kansas 
over TMDLs. They clearly stated it was their belief that 
Congress did not include any provisions requiring States or EPA 
to directly regulate non-point sources, but that rather section 
319 was the vehicle in order to do that with best management 
practices.
    So, it's very contrary to what they've been saying 
recently. Second, we believe that the rule jeopardizes 
successful programs that are already being implemented in the 
States, both through 319 and 208 and also under the 1985, 1990, 
and 1996 Farm bills.
    And we in the States are developing programs of our own. In 
Kansas we have a Governor's Water Quality Initiative, a 
Governor's Buffer Initiative, various other partnerships and 
collaborative efforts and we have measurable results. We can 
show that those collaborative voluntary incentive-based actions 
work and they do reduce pollution in our waters.
    We are in the forefront. We know what the problems are. We 
know what will help. And we just ask EPA to get out the way and 
let us do our jobs.
    In Kansas we have already written and are beginning to 
implement 90 TMDLs in the Kansas Lower Republican Basin. This 
year we expect to finish writing 121 TMDLs from three other 
basins in our State. In fact, members of my staff were out in 
Garden City, KS, Great Bend, KS and Newton, KS the last two 
nights holding local, stakeholder meetings with producers, 
educating them about TMDLs and what their responsibilities are.
    Third, the Departments of Agriculture are concerned that 
the TMDL proposed rules significantly expand command and 
control regulatory mandates and do not provide flexibility.
    Senator I would agree with you that they talk the talk and 
don't walk the walk. And when you get out in the regions it's 
very, very different than what we hear from headquarters staff.
    We know in Kansas through experience that the geographic 
and hydrologic extent of non-point source pollution defies a 
regulatory approach. We also know that you have to have 
cooperation and collaboration to get results. We had a program 
in Kansas where we provided an incentive to reduce atrazine 
runoff. It took one-on-one work. We had a 100-percent 
participation in the targeted sub-basin and we had measurable 
results in water quality. It works. We know it works.
    Finally, we believe the rule fails to recognize the 
substantial State resources needed to address non-point source 
pollution. That's both financial and technical assistance, 
gathering scientific data, monitoring and doing BMP research. 
We have found in Kansas--and I believe the other States have 
too--that technical assistance is just as important to minimize 
non-point source pollution as is financial assistance for 
farmers and ranchers. It takes a lot of one-on-one work, 
helping them understand what the problem is and then how they 
can go about solving that problem.
    We also believe that water quality data in all the States 
is not adequate to make the kinds of decisions the EPA rule 
requires. Even in States like mine where we have a network of 
200 monitoring sites that have been in place for over 20 years, 
when we went into the Governor's Water Quality Initiative we 
had data gaps. We had to do extra monitoring. We did additional 
biological monitoring through our Wildlife and Parks Division 
in order to just get a baseline, so if in a State like ours 
where we do a lot of monitoring there was a problem, I can 
imagine--and I've heard from my colleagues--the problems they 
have in other States.
    And finally, we are investing a lot of money in best 
management practice research with our land grant institutions. 
Farmers and ranchers want to do the right thing. They just need 
to have the tools in order to do that, and we need to fund best 
management practice research.
    And then finally, we believe that EPA's economic analysis 
greatly underestimates the costs to the private sector of 
implementing TMDLs. The State Conservation Commission in Kansas 
did a review of one half of a county that's in the current 
implementing area of TMDLs, how much it would cost to implement 
practices to meet high priority TMDLs on 192,000 acres. They're 
talking about $4 to $5 million. And I know in Washington that 
$4 or $5 million dollars is not a large sum, I understand that. 
But here's what it means for producers on the ground.
    The average value of production in that county for a farmer 
is $90,000. We are talking about 4 to 5 percent of their gross 
margin to implement TMDLs. And we all know in a good year for a 
producer it's 3.5 to 5 percent and in the years that we've had, 
the last two or three--you can't get blood from a turnip. They 
just don't have it. So we need to think about it in those 
terms, too. Whether it is or isn't in the statute, it means 
something to those folks. We're talking about small producers. 
The map on the back table over there showing the impaired 
waters for Kansas, many of them you'll see are from pathogens, 
fecal coliform bacteria. And I can guarantee you if you look at 
the northeast corner of the State of Kansas those are the 
producers that have less than 300 animal units because in our 
State we permit anything over 300 animal units. We are talking 
about very, very small producers who just don't have the 
capital that it takes to get this job done.
    Finally, I would just close by emphasizing that the rule 
does exceed their authority. It is rigid top-down. It won't 
improve water quality. And it fails to recognize the costs 
having to do with implementation. And if you don't remember 
anything else I said today, this is not about pushing paper and 
it's not about process. It's about people. It is about farmers 
and ranchers and their livelihoods and their businesses and 
their families. This isn't about what goes on inside the 
Beltway here. This is about what happens on the ground. And it 
has a real impact.
    Finally, I would just say please judge us on our 
performance. I agree, and NASDA does too, with the 
``functionally equivalent,'' but I would say that if we have 
data that shows we're meeting the standards or the trends are 
going in that direction, leave us alone and let us do our jobs. 
And I would offer also that NASDA would be willing to work with 
the committee along with WGA to come up with some kind of a 
compromise.
    Senator Crapo. Thank you very much, Ms. Adams.
    Mr. Holm.

STATEMENT OF DAVID HOLM, PRESIDENT OF THE ASSOCIATION OF STATE 
     AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS

    Mr. Holm. Thank you, Mr. Chairman. I'm David Holm, 
president of the ASIWPCA this year and we're the National 
Professional Organization that consists of the administrators 
of programs under the Clean Water Act.
    I wanted to talk about the dialog that we've had ongoing 
with EPA over the past year or so concerning this proposed 
regulation. Recently in December there was a 2-day very 
intensive workshop that we had with EPA where we considered 
this proposal in great detail. And what I would like to do 
today is talk about the areas where it seemed that the Senior 
EPA Managers that were there seemed to be agreeing with us and 
then at the same time highlight where we have some continuing 
disagreements that are fairly significant.
    What I would like to do is track my comments with the basic 
elements of the TMDL process and EPA's proposed regulations, 
beginning with monitoring and assessment, because that truly is 
the foundation of the TMDL program.
    We do seem to share some agreement with EPA that the 
current level of resources that we can bring to bear on this 
foundational element of the TMDL program is inadequate.
    On the other hand EPA sought and received a bump in the 
budget under section 106 last year. And they're proposing, as 
Mr. Fox noted, an increase this year as well. While States are 
somewhat concerned about the 66 percent match that they're 
proposing for that new funding under section 106, things seem 
to be moving in the right direction here.
     The next major topic is related to the development of the 
list and listing and delisting issues. In the States' view the 
comprehensive water body accounting system needs to be the 
system that's authorized under section 305(b), not the section 
303(d) which deals with a very specific list of impaired 
waters.
    I think the EPA was listening to us as we expressed that 
concern and pressed it at that very intensive meeting. I think 
they have considered the proposal to move away from multi-lists 
under 303(d) back to looking at 305(b) as the place where the 
status of the Nation's water bodies are accounted for.
    One of the issues that has received a lot of play, we've 
heard a lot about today. But it's an issue that not all States 
are in agreement on. It is that EPA lacks the authority to 
require a listing of water bodies impacted only by non-point 
sources. EPA cites its current regulatory authority as the 
reason it so adamantly insists that such water bodies be 
listed. That's an area of quite a lot of controversy around the 
country.
    Another issue related to listing with regard to non-point 
sources and point sources is whether threatened water bodies 
should be listed. If threatened water bodies really are listed 
the list will become unimaginably long. In Colorado nearly 
every water body would be listed as threatened because our 
receiving waters are so small that it takes very little 
pollution to use up the assimilative capacity. And our goal is 
to try to maintain these water bodies at the level of the water 
quality standards. But they are all threatened. Many other 
States have expressed that view as well.
    One of the next major topics that we've talked to EPA about 
has to do with scheduling and priorities. We feel that this is 
very much an issue that should be in the States prerogative. 
The discretion to set priorities in consultation with the 
public based on all relevant considerations is the way 
priorities and schedules should be developed. EPA on the other 
hand has set a number of triggers that would increase the level 
of priority for water bodies, including whether they contain 
ESA-listed species or water bodies where MCLs are being 
violated.
    We disagree with EPA on the definition of TMDLs. They've 
included the requirement for an implementation plan. That's a 
major source of disagreement. We have also disagreed with EPA 
on the reasonable assurance that's necessary to be included 
with TMDLs.
    In conclusion, I want to remind the committee that this 
regulation proposal has come about in the wake of a tremendous 
amount of litigation stemming from the failures of States to 
implement section 303(d) of the Act. And I won't go into all 
the reasons for that today. But we have had many priorities 
over the years. It's very clear that this proposal is being 
developed in the existing climate of regulations, statutes and 
resources and therefore it needs to fit in, fit in flexibility 
into that structure. We think that TMDLs should serve a very 
limited function and that is identifying the assimilative 
capacity of water bodies for pollutants that really can be 
measured in terms of concentration and loads.
    A TMDL program is only as good as the implementation 
efforts that follow it, but that doesn't mean that 
implementation should be part of the TMDL.
    Mr. Chairman, we've made many thoughtful and detailed 
recommendations on this proposed rule by EPA. Where we've not 
made suggestions EPA can assume that we agree with their 
proposal as long as the provision is consistent with our other 
recommendations. But we believe if our comments are 
incorporated into the rule we'll have a result that will be 
widely supported. And I thank you very much for the opportunity 
to speak with you today.
    Senator Crapo. Thank you, Mr. Holm.
    Mr. Archey.

 STATEMENT OF WARREN E. ARCHEY, MASSACHUSETTS STATE FORESTER, 
CHIEF OF THE MASSACHUSETTS BUREAU OF FORESTRY, AND CHAIR OF THE 
                 NASF WATER RESOURCES COMMITTEE

    Mr. Archey. Thank you, Mr. Chairman. I am chief of the 
Bureau of Forestry in Massachusetts and also committee chairman 
for the Water Resources Committee of the National Association 
of State Foresters and that's the position I'd like to bring 
forward. And I appreciate the opportunity to provide testimony 
today.
    First I will summarize the NASF position, make a few 
observations and finally propose what we believe are reasonable 
approaches to solutions.
    The NASF position. The State Foresters are strongly opposed 
to the proposed rules on three major grounds. The proposal is a 
major departure from the historical interpretation and previous 
implementation of the Clean Water Act and is not supported by 
statutory authority. The proposal ignores the minor 
contribution made by forest management to water quality 
problems nationwide. And threatens to disrupt the effective 
approach taken by State foresters and our Federal partners, 
mainly the Forest Service in concert with 319 and EPA to 
achieve non-point source mitigation.
    Their proposal would be extraordinarily difficult to 
implement and practice and will result drastically higher 
implementation costs for both States and that they must develop 
TMDLs and landowners and wood industry who might become subject 
to NPDES permitting requirements. Those are the basic position 
items.
    Observations. The NASF is committed to the goals of the 
Clean Water Act and watershed-based solutions, we're all 
together on that. Forest management is vital to water resource 
protection. As an example close to home. The Metropolitan 
District Commission in Massachusetts manages for what is called 
for resilient forest, one that will ideally leave a two-tier 
under story after catastrophic events such as hurricanes. 
Interestingly, Massachusetts has witnessed a 70-year recurrent 
cycle for hurricanes and other northeastern States have seen it 
on more frequent occurrences and though these are unpredictable 
in the short term, they're statistically predictable for the 
long term and a fact of life.
     So what, what does all this mean? It means that if we're 
going to have a resilient forest what we've got to do is have 
the opportunity to manage that forest. And if we observe that 
protection of forest soils is a large part of the solution 
recognizing that forest represent the ideal catchment, filter 
and water storage median, then protecting that forest and that 
resilient forest is a paramount item.
    I should note incidentally that the Metropolitan District 
Commission provides 2.5 million people around the Boston 
Metropolitan area with unfiltered water, mainly because of the 
kinds of management that they're up to and that is testimony to 
me to the effectiveness of BMP implementation.
    Further, forest management should be seen as a non-point 
source mitigation, a buffer from detrimental land issues 
through afforestation station and reforestation station. And in 
this instance we regard forestry as the solution to the 
problem. Again prevention rather restoration is more effective 
and much less expensive.
    An ideal solution should be voluntary and incentive-based--
State/Federal partnerships that produce workable solutions that 
are being constantly improved. Water and forester licensing and 
certification, best management practices developed and 
refined--a process that is not broken. It is only in need of 
occasional refinement as experience and evolving science 
dictates.
    EPA section 319 is a valuable tool which could be expanded 
and refined. Solutions, my last thoughts, and there are three.
    As we look at the law that exists it needs consistency. I 
think we've heard that a number of times. Another alternative 
to how we might deal with this is a silvicultural exemption. 
Another way to deal with it too is through much more 
cooperative efforts than we've seen in the past.
    Clarification. There's an inconsistent message, 
preoccupation with bad actors. There are other ways to deal 
with them. How to differentiate between point and non-point 
silvicultural activities. How to enforce this. And finally 
under clarification, a comprehensive examination of costs to be 
incurred.
    Back to the silvicultural exemption. This should be 
broadened. Note the provisions of Senate bill 2041 as 
introduced by Blanche Lincoln of Arkansas and House bill 3609 
as introduced by Representative Max Sandlin of Texas. But, 
whether we incorporate an exemption on that, let's 
simultaneously work together on communication and funding. We 
should be emphasizing prevention over restoration, much 
cheaper, I've said that before.
    Woefully inadequate today is the funding. If we say the 
silvicultural activities are a problem, that section 319 is 
only provided 2 million or 2 percent over fiscal years 1996, 
1997 and 1998 as compared to $100 million to $1 billion 
estimated to implement these new rules.
    Let's more fully utilize section 319 as an alternative to 
TMDLs. We need better focusing and targeting for funds. We need 
solutions like the watershed forestry initiative. You'll find 
that that's an attachment to the package in our written 
testimony.
    This kind of thing would put people on the ground with the 
kind of technical assistance we heard about earlier. The wood 
industry would be in better shape, certainly landowners on the 
best management practice implementation. This, the forefront of 
what we see, is the solution. This works. We need cooperative 
joint studies as to BMP compliance and effectiveness, again 
let's make that thing that works even better. NASF is setting 
the stage for some of that now with a survey of State BMP 
programs.
    And finally, let's intensify non-point source activities 
among NASF, the Forest Service and EPA at the national level 
and simultaneously seek closer relationships between State 
Forestry Agencies and State Water Quality Agencies.
    Section 319, Source Water Assessment Program, Clean Water 
State Revolving Fund Grants, these are alternative solutions to 
all that and I think if we work earnestly on these we can 
provide an alternative to TMDLs.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you, Mr. Archey.
    Mr. Parrish.

  STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL LAW 
                             CENTER

    Mr. Parrish. Good afternoon, Mr. Chairman. My name is Rick 
Parrish, I'm an attorney at the Southern Environmental Law 
Center, a non-profit environmental group that works throughout 
the south. I too served on EPA's TMDL Advisory Committee and 
have been working for about 10 years to strengthen the TMDL 
program. And I want to make sure we keep one thing in mind as 
we discuss these proposed rules, proposals that would serve to 
strengthen and clarify the program. We're here because the 
current rules do not work.
    The TMDL program was included in the 1972 Clean Water Act. 
It has been virtually ignored by States across the country for 
25 years. Rules have been in place since 1985, guidance has 
supplemented the rules throughout the 1990's, and though there 
has been a considerable amount of effort in the last year or 
two at different States across the country, which we certainly 
applaud and appreciate, my question is where have we been for 
the last 25 years?
    Now clearly, there's been a lot of progress under the Clean 
Water Act in other programs, in particular the point source 
technology based NPDES permitting program, over the past 25 
years. There's been increased attention to non-point sources 
since section 319 was adopted, in particular over the past 10 
years. But, I would submit that the results of that section 319 
funding really don't measure up to the commitment that was made 
by Congress and the desire among the American public that 
waters be cleaned up.
    Currently close to 40 percent of the Nation's waters that 
are assessed are found to be impaired. Too polluted to be used 
for whatever purpose the States have designated. The largest 
component, the largest source or contribution to that 
impairment States 
indicate comes from non-point sources. It simply makes no sense 
whatsoever to talk about a comprehensive cleanup program that 
doesn't include non-point sources in the package.
    But, that doesn't mean you're talking about a regulatory 
program. Some States have chosen to go that route, most States 
have not. EPA has sanctioned that choice, whichever it may be. 
For the most part EPA is telling States, you figure out 
initially how to solve these problems and as long as what you 
propose will do the job, then there is no limit to your 
discretion and your flexibility. Now thankfully EPA is also 
saying, if what you propose isn't likely to succeed though, 
we're going to need to go back to the drawing board. Because 
that's where we've been for 25 years. We've been talking about 
our joint and mutual and collective commitment to clean water 
and we haven't been doing it.
    We haven't been restoring the worst polluted waters in the 
country through the TMDL program. A program of emminent sense 
and logic. Now there can be debate about legal authorities, and 
there will be. Courts will resolve them this year hopefully, 
next perhaps. I happen to believe EPA has the authority to 
include non-point sources in this program because the law 
simply states, identify waters where technology-based permits, 
point-source permits, aren't sufficient to keep them clean. And 
by definition that includes waters impaired by non-point 
sources. Because the best point source permit isn't going to 
keep them clean.
    There's further debate about whether silviculture belongs 
in this package as a point source operation. Well silviculture 
has never been exempted from the point source program of the 
Clean Water Act. And in fact, since the early 1980's a number 
of silvicultural types of activities have been included in the 
NPDES point source permitting program. Log landings and the 
like, a very small number of operations given the potential 
impact that other activities within the silvicultural arena 
have on water quality.
    Now, what EPA is proposing here with the silvicultural 
component of this rule has received an inordinate amount of 
attention which I would attribute to a highly irresponsible and 
inaccurate portrayal of that rule by the forest products 
industry. We've seen publicity about how EPA is asserting 
Federal land-use authority, Federal regulatory authority, 
Federal permits to every forestry operation in the country and 
nothing could be further from the truth. As its been explained 
over and over and over again, EPA won't even consider 
designating additional silvicultural operations as in need of a 
permit and even then a general permit, unless that operation is 
causing a serious water pollution problem, and unless the State 
has thrown up its hands and walked away from that problem 
saying, ``We can't deal with it,'' and there is in fact, a 
point source--a pipe, a culvert, a ditch--and there's no other 
way to fix the problem. Only in that rare, extremely rare 
combination of instances will EPA consider stepping forward and 
assuming the burden of imposing additional permits or imposing 
general permits on that operation.
    And frankly, if you're not going to do it then, we might as 
well all throw up our hands and walk away and say we don't mean 
it when we talk about our collective commitment to clean water.
    So I recognize, Mr. Chairman, that these rules will impose 
additional burdens on States, on local governments, on the 
public, on point source and non-point source operations when 
those added burdens are necessary to clean up the water in this 
country. The people spoke almost 30 years ago through Congress 
about how important that was, that hasn't changed. And I 
believe these rules are the first big step toward actually 
achieving that goal set almost 30 years ago.
    Thank you.
    Senator Crapo. Thank you, Mr. Parrish. Members of the 
panel, I have been writing down questions for each of you as 
we've been going along here, but I think that I may come back 
and wrap up with some of those questions, but I think what I 
would like to do is to get into some of these issues with the 
whole panel and have some give and take on them. And I'd like 
to start out with one that has been sort of a common thread 
throughout much of the testimony and which frankly Mr. Parrish 
just spent some time talking about as well.
    And that is this question of, have the States and the local 
communities been getting the job done over the last 25 years? 
Mr. Parrish, you've indicated that in your opinion they have 
not in a lot of ways. I think you said there were some 
successes in some areas.
    Mr. Parrish. I'll clarify, if I may.
    Senator Crapo. Sure.
    Mr. Parrish. There's been tremendous success in the 
reduction of point source discharges through the technology-
based NPDES permitting program. There's been certainly some 
improvement in the non-point source sector through section 319 
funded demonstration projects, studies and research and the 
like.
    There has been abysmally little success in restoring 
impaired waters through the TMDL program or otherwise.
    Senator Crapo. Are you referring to waters impaired because 
of non-point source pollution or has the failure also been on 
the part of point source solution efforts?
    Mr. Parrish. Well I think the failure has been widespread. 
And that certainly there are many waters on the 303(d) lists 
that the States develop that are there because of point source 
discharges. I believe common wisdom among the States is that 
non-point sources have become over the past 20 to 30 years a 
larger component of the problem.
    Senator Crapo. Because of the successes in the point 
source?
    Mr. Parrish. Exactly.
    Senator Crapo. OK. I see several aspects of this issue, but 
what I would like to ask the panel to focus its remarks on 
right now is--I will get to the jurisdictional aspects and BMPs 
versus TMDLs and all that, but the question I'd like to focus 
on right now for a minute is, is it correct, have we had an 
abysmal lack of success, Mr. Nielsen?
    Mr. Nielsen. Mr. Chairman, I think Rick hit it on the head 
when he mentioned--I call him that because we served together 
on the TMDL FACA so we are somewhat familiar with each other--
hit it on the head when he said that we've made great strides 
using the best technical practices on the point sources. And 
that's my concern. When Mr. Fox was here and he made a comment 
that he said, ``Well we don't really care how the States solve 
this problem, they can do it at non-point sources, they can do 
it at point sources.'' My concern is that the onus of 
compliance will fall primarily on the point sources because 
those are the sources that the States and the Federal 
Government have statutory control over.
    Whereas the problem now exists really with non-point 
sources. So if you came to me and said, ``Well, we need you to 
clean up a pound of phosphorous,'' I'd much rather do that from 
my storm water than I would down at my sewage treatment plant. 
And the most cost-effective way, especially particularly in 
regard to nutrients would be to deal with that at the non-point 
source level from a cost-effective standpoint. So what we've 
been doing over the last 30 years is building and improving our 
sewage treatment plants and now we do need to take that next 
step and deal with the non-point sources.
    Senator Crapo. OK, Mr. Holm.
    Mr. Holm. I do agree that the way the program is currently 
structured the onus will continue to be on point sources to 
achieve the gains and that's because there is not yet a climate 
of pervasive regulatory requirements upon non-point sources to 
improve water quality. So therefore non-point sources may well 
be in the catbird seat waiting for point sources to come to 
them and offer to pay for management practices in order for 
them to accomplish needed expansions in their infrastructure.
    So, that's a problem, but I also wanted to respond to the 
earlier issue about have we succeeded? Have we succeeded in 
dealing with these water quality impairment problems and I 
would say that we have some very noteworthy successes and we 
have some very important lessons learned. And one of the 
lessons learned is that when you take a watershed approach and 
you try to deal with all of the water quality problems in a 
basin, it takes a long time to bring people together, have them 
understand that there's a problem, have them understand what it 
will take to get better information, then to make decisions on 
how to use that information. The commitment is there, but it's 
a long process and in the end it's a very successful and solid 
process. We have a lot of successes, not in proportion to the 
scale of the national problems that we're dealing with, but I 
frankly don't think that that commanding kind of approach in 
the end will get us there any faster. I think the slow way is 
the fast way in dealing with these water body-wide problems.
    Senator Crapo. Ms. Adams.
    Ms. Adams. I would just point out that when I did review 
the Kansas EPA brief for this hearing, the EPA also pointed out 
in Senator Muskie's comments on the floor when the Clean Water 
Act was passed, folks were told to focus on the biggest 
problems which at that time were the point sources. So I think 
it's a little misleading to say that we've been sitting around 
doing nothing for 25 years when we focused our limited 
resources on point sources.
    I can say too for the people in the agricultural community 
they understand they are under the gun and if they don't 
perform we will get regulation. In our State at least we have a 
very good working relationship with the cities. Pollutant 
trading isn't a real option in western Kansas, there aren't big 
enough cities to trade with so they're going to have to take 
care of their problems themselves. But I agree with Mr. Holm 
that this is a long process, you have to bring farmers and 
ranchers to the table, help them understand why they are part 
of the problem and how they can be a part of the solution and 
the 80/20 rule applies, 80 percent of them will do the right 
thing if they know what the right thing is to do.
    Senator Crapo. Help me understand--did you want to say 
something, Mr. Archey?
    Mr. Archey. Yes, sir. As we look to silvicultural 
activities for example, I see great progress in that area. And 
States I'm most familiar with--the northeast and New England, 
and I'll go back to my own State--we've had two, three 
different versions of a Forest Cutting Practices Act. And we've 
gone from voluntary to required. And we've had two different 
versions of BMPs and we'll have more. And it's a narrative 
process, one that builds on experience, one that builds on 
evolving science and one that we can continually make better. 
There's no question. We've got a distance to go and we'll never 
be totally there. But again I would go back to that notion of 
coordination and communication, working together through maybe 
non-nuclear means, conventional means rather than TMDLs and get 
that Act together, give it a better chance, support it through 
section 319 and other programs.
    Senator Crapo. Did you say conventional BMPs through 
section 319, is that what you're referring to?
    Mr. Archey. Right.
    Senator Crapo. And section 319, help me a--help me 
understand a little bit about--well, let me ask this question 
this way.
    It's my understanding that basically we've dealt with non-
point source, excuse me, point source solution pollution 
problems through 303 and TMDLs, and we've been trying to deal 
with non-point source solution through section 319 and BMPs. Is 
that, does anybody want to clarify that?
    Mr. Parrish. I would just say we have not yet dealt with 
point sources through TMDLs.
    Senator Crapo. OK.
    Mr. Parrish. We have dealt with point sources almost 
exclusively through the permitting program, the NPDES point 
source permitting program.
    Senator Crapo. But that is what we are trying to do, am I 
correct in that?
    Mr. Parrish. Well, we're trying to get the TMDL program off 
the ground. The rules have been in place for a good many years.
    Senator Crapo. OK. Let me say it this way then. The TMDL 
program is directed at the point source solution issue, the BMP 
and section 319 is directed at the non-point sources, is it not 
that simple?
    Mr. Parrish. I don't think so. I'm afraid that's really 
where the hub of the debate is. EPA's feeling with which I 
strongly agree, is that the TMDL program is directed at the 
intersection of point source and non-point source activities. 
It is the big picture. It's the one which really supports this 
whole watershed approach, where you don't look at just this 
point source or even just these point sources. You look at 
everything that's contributing to the problem and you decide 
which combination of reductions would best, most efficiently 
fix that problem.
    Senator Crapo. And that issue is what's been litigated in 
California, am I right about that?
    Mr. Parrish. Whether the non-point source component of that 
picture belongs in----
    Senator Crapo. In the TMDL programs.
    Mr. Parrish. Exactly.
    Senator Crapo. So as you said, hopefully this year we'll 
get an answer to that question.
    That being the case and I appreciate that this is not only 
debatable, but litigatable issue, where are we with regard to 
what the FACA Committee, how many of this panel were on the 
FACA Committee? The two of you.
    Mr. Nielsen. Notice that they put us opposite each other--
--
    Senator Crapo. The question I have is did the FACA 
Committee recognize or take a position or approach this issue 
from either of these perspectives in terms of how they 
perceived non-point sources to be dealt with by the statute?
    Mr. Nielsen. There was disagreement on the committee and it 
came primarily from the agriculture and silviculture 
representatives and it was their contention that those 
practices did not fall under section 303(d) of the Clean Water 
Act.
    Senator Crapo. And so was there a--there was no 
recommendation in that context from the committee?
    Mr. Nielsen. There was no consensus.
    Mr. Parrish. There was no consensus, because in fact, there 
was this disagreement, a minority opinion if you will. To their 
credit though, those representing non-point source interests 
continued to work with the rest of us to shape what they felt 
would be a better more effective TMDL program, whether it 
included non-point sources or not.
    But the legalities--we just had to put that issue aside 
because it wasn't for us to resolve.
    Mr. Nielsen. Senator, if I could jump back to your previous 
question. I just wanted to make a brief comment on that. On 
whether there is some problem with including non-point sources 
in a TMDL. The problem as I see it in 1972, they included both 
the load allocations from point sources and non-point sources 
in the definition. The problem we ran into and I think Mr. Fox 
alluded to this is the difficulty of quantifying the load 
allocations and identifying the load allocations for those non-
point sources.
    In the equation for TMDL they're laid out there. But, there 
is really no good scientific way to quantify and identify where 
they're coming from.
    Senator Crapo. Mr. Holm.
    Mr. Holm. The way that in Colorado for example we have used 
TMDLs and we've done close to 300 of them, most of them really 
related to supporting protective limits for point source 
permits. The non-point source component becomes a background. 
It becomes the fixed background against which protective limits 
for point sources have to be put into permits.
    Senator Crapo. Right.
    Mr. Holm. And I think most States have used TMDLs that way 
that have done TMDLs.
    Senator Crapo. Let me--this is really for my edification, 
but I'd like to try to go back to the example I was using with 
regard to Coeur d'Alene, ID and the basin up there. And I 
realize none of you are probably aware with much detail there 
so you'll have to just use this as an example and trust my 
recitation of the facts. But, that is an ecosystem, if you 
will, or a basin which has had a tremendous amount of historic 
hard rock mining for hundreds, for a hundred years or more and 
so there have been some point source issues, but there has been 
so much mining throughout the upper reaches of the basin that 
now there's runoff questions and things like that where you 
really--I think there's a lot of non-point source issues as 
well.
    And it seems to me as we focus on the question of whether 
this really is something which the local community has control 
over that I saw an interesting dynamic because the Agency 
officials in all sincerity believed as they testified that this 
is something where the States can figure out what to do and if 
they can do it, they can do it.
    The problem was as I have come to evaluate it and the 
testimony of this panel is helping me to see this even in more 
clarity, that the definition of the standard pretty much 
establishes what must be done for the implementation. And so 
you can control the implementation decisions by the standards 
that you set. And I'd just like your comment on that. Am I 
correct in that assumption or in that conclusion?
    Ms. Adams.
    Ms. Adams. That's exactly right. In Kansas we made that 
mistake and that's my own personal opinion in setting our water 
quality standards about 10 years ago with the idea that they 
were goals and now they're not goals anymore. And we set them 
at very, very protective levels. Once you do that there is an 
extreme burden to change them. We have a natural salt intrusion 
problem in the center part of our State and at the time that 
those regulations were passed they didn't take that into 
consideration. We have 20 years' worth of the data to show that 
it's a natural intrusion and if you think we can get region 7 
to change their mind on that issue, it won't happen.
    Senator Crapo. And as long as the region, is region 7 
doesn't change its mind the only way to achieve that standard 
if it's achievable is very narrowly limited.
    Ms. Adams. To nail the point sources down till they can't--
they're putting cleaner water back in the river than what 
they're getting out.
    Senator Crapo. Any other comments on this aspect, Mr. Holm?
    Mr. Holm. I can relate very directly to the problem of 
Coeur d'Alene. In Colorado our most difficult water quality 
problems are related to past mining and we've been working on a 
number of basins that have very similar problems to Coeur 
d'Alene and I'm quite familiar with Coeur d'Alene, as well.
    There are a couple of points that I wanted to make and 
maybe these are things that would be of value.
    First of all, it's true that the Gold Book standards, the 
table value standards will rarely be achievable in watersheds 
that have been heavily altered both geothermally by the 
mineralization process and then by man's activities in mining. 
So therefore, it's a given fact that site specific standards 
are going to be needed. The other thing though is that with 
abandoned mines there's a unique problem, there are no 
operators. You have a succession of landownership where there's 
no activity any longer taking place that would warrant some 
sort of treatment.
    Senator Crapo. Right.
    Mr. Holm. Being imposed. And one of the problems in the 
Clean Water Act is that even if people who don't have 
responsibility for those problems enter in and try to do 
something that would make good sense to improve water quality, 
they could become responsible for the problem and get tagged 
with the costs of cleaning up to the water quality standards.
    There has been discussion of a Good Samaritan provision 
under the Clean Water Act and I would really urge you to take a 
look at that and consider supporting it. And what that would do 
is allow people to come forward with projects that would make 
the most sense to abate the pollution problems that are there 
short of installing chemical and physical treatment plants at 
every old abandoned mine site.
    Senator Crapo. Without picking up liability.
    Mr. Holm. Without picking up liability, but a permitting 
process where there would be some rigor. It's just that it 
would be based on practical management practices, the best 
management practices for a given type of problem. When that 
kind of a program was put into place in a basin that was 
impacted like Coeur d'Alene is, there would be a result in 
water quality. The water quality would be improved to some 
degree and at that point I think there would be a very solid 
case to be made that the residual water quality problems are 
really part of the background. They are--in other words, a 
higher level of water quality is just simply not attainable.
    That would provide a basis for site specific standards.
    Senator Crapo. Thank you. Mr. Parrish.
    Mr. Parrish. If I may add, you're right that the standards 
set the goal for the TMDL process. If that goal is deemed 
unreasonably high in specific instances, there is a process in 
place for changing it. Now frankly, my experience is exactly 
the opposite with EPA. I have seen EPA only too willing to 
consider changing a standard to reflect a natural dissolved 
oxygen level in swamp water for instance that is unattainable 
given the routine standard for most surface waters in the 
Commonwealth of Virginia.
    That's perfectly reasonable. I suspect there's a serious 
miscommunication problem if they're--if EPA is seemingly 
demanding higher than natural standards in Kansas or elsewhere. 
That is not national policy.
    Senator Crapo. I don't.
    Mr. Parrish. And I will tell you that the first TMDL 
produced by the State of Tennessee and approved by EPA just 
last year included a site specific standard because it was 
deemed that cleaning up that small waterway to fit the State 
and national standard otherwise applicable was simply not worth 
the investment to society. A different standard was proposed, 
EPA accepted it, and the public can live with it. That process 
is in place.
    Senator Crapo. Good, Mr. Parrish, that is actually very 
good news for me to hear you say because I only have the one 
experience I've described here today in Idaho where the process 
was technically in place, but I'll tell you it's been like 
pulling teeth to get it to work.
    In fact, the standards that they were imposing and still 
are imposing, are such that if you were to go up into the 
highest parts of the watershed above any manmade activity and 
take the purest water you could get it would be out of 
compliance.
    And in fact, I can go on with the stories about this. And 
it's simply because of the regional circumstances of the 
geography or whatever the word is that I should be using there. 
And everybody agrees, but for some reason in our case it 
doesn't seem to be working. And so I'm hopeful that we are an 
aberration that is not the norm and that what you described is 
accurate. That it works that way most of the time.
    Mr. Parrish. But it even sounded as if it was working that 
way in Coeur d'Alene. It's just taking a while.
    Senator Crapo. It's taking a while, but it shouldn't have 
to take a U.S. Senator 8 months to make it work is what I'm 
saying.
    Yes, Mr. Nielsen.
    Mr. Nielsen. Your example you brought up though was 
something that we wrestled with on the Advisory Committee, the 
historical or legacy problems that really pre-dated any of the 
Clean Water Act. And I think the current regulations make 
exceptions for sites similar to this. We have a situation in 
Wisconsin of PCB deposits in the Fox River, that's an example 
of that. There are other cases that we talked about and they're 
scattered throughout the entire country so it's not an isolated 
example. There will be such situations.
    And I think the regulations or the recommendations if I 
recall from the EPA are to deal with it in a manner that Mr. 
Holm suggested that there would be exceptions for backgrounds 
that would be contributed by these sources and there would be a 
longer time period beyond the 15 years to deal with that.
    Mr. Parrish, is that your recollection on how we decided?
    Mr. Parrish. More or less. I don't think there is actually 
an exemption in the current regulations, but there's an 
understanding that these much more difficult problems are going 
to take longer and are not going to lend themselves to the same 
kinds of point source or non-point source reductions that 
hopefully will fix most of the problems.
    Senator Crapo. Mr. Parrish, I have one question specific to 
you and I do want to say that as we've all said here that clean 
water is extremely important to us and we want to see it solved 
and that we have work to do. And I'll be the first to 
acknowledge that.
    You know I'm often asked, being from Idaho, by my 
constituents why would you leave here and go live in 
Washington, DC., why do you want to go do that, because we have 
beautiful clean water and clean air and wonderful environment 
and we want to make it cleaner and keep it that way, so it's 
something we can all identify with.
    And I appreciate your perspective as a FACA member having 
gone through the process. And in your written testimony you 
focused on the implementation plan as an area of agreement and 
it's my understanding that there was disagreement as to whether 
the implementation plan should be included in Sec. 303 or 
303(e), which basically comes down to whether the EPA has the 
authority to approve or disapprove and to rewrite a State 
implementation plan. And to me that seems to be pretty 
critical. What's your opinion on that issue?
    Mr. Parrish. Your understanding is correct. There was 
agreement, complete consensus on the Advisory Committee that 
TMDLs were worthless if they were not implemented.
    Senator Crapo. Right.
    Mr. Parrish. And that implementation plans should be part 
of a TMDL-based watershed recovery plan.
    There was a difference of opinion about whether it should 
be part of that plan formally and submitted to EPA for review 
and approval under section 303(d), or developed concurrently or 
perhaps afterwards, but separately, and submitted as part of 
the watershed management plan under section 303(e). And the 
difference is largely whether it will be subject to EPA review 
and approval.
    From a practical standpoint I have firm belief that if 
implementation plans aren't done with TMDLs and reviewed as 
part of the TMDLs they are not going to be done.
    And if implementation plans are prepared but not subjected 
to review and approval, well we've seen 20 years of that and I 
frankly don't think it's worth anything.
    Senator Crapo. If there were not--is there any enforcement 
mechanism if the EPA doesn't have oversight? I mean what 
happens under section 303(e)?
    Mr. Parrish. No enforcement mechanism whatsoever. The 
fallback position for those who work to clean up waters really 
is asking EPA to step in and take over State programs because 
States aren't doing the job. That's something nobody wants as a 
practical matter.
    Senator Crapo. Mr. Holm.
    Mr. Holm. If the TMDL is established and approved by EPA 
under the current rules, the TMDL must be implemented through 
NPDES permits that are issued. So clearly there is an 
enforceable mechanism for the point source component of a TMDL 
right now, today. With regard to the non-point sources it's 
true that if implementation plan was done under section 319 or 
as part of the continuing planning process section 303(e) that 
that would not separately be approvable by EPA and frankly, I 
think the States feel that that is a plus. We think that 
there's an orderly sequence that needs to take place when 
you're involving real people in this process.
    And the first part of that is to develop standards. The 
second part is to translate those standards into a water body, 
a very specific water body. That's the TMDL. After that, 
allocating responsibilities, developing an implementation plan 
can follow. If you try to force that at the same time you are 
establishing a water body specific goal everybody just runs 
away. It stifles the process and you just don't get there.
    Senator Crapo. Ms. Adams, I just wanted to ask you, you 
mentioned a State voluntary incentive-based program to reduce 
runoff. Can you elaborate on that or maybe share your thoughts 
on how such a program might formulate a basis for an 
alternative solution to the current proposal or a supplement to 
it?
    Ms. Adams. That specifically was part of the Governors 
Water Quality Initiative and what we did we went into the 
Kansas lower republican basin, it's our most populous basin. It 
has a mixture of industrial, agricultural and it has a lot of 
surface waters so it was a good test area for us. We also grow 
row crops in that area that use a lot of atrazine to keep the 
weeds down. We identified that Perry Lake, which is a drinking 
source, had an atrazine problem. We offered a $5-per-acre 
incentive payment from State funds to producers in the sub-
basin if they would apply the atrazine when Kansas State 
University had determined was the best time to put atrazine on 
so it wouldn't run off with the spring rains. We bought half 
time of the county extension agent. He went out door-to-door to 
every farmer and talked to them about the program, why they 
needed to do it and why it was economically feasible for them 
to participate. He got them to enroll in the program and they 
applied the atrazine at the appropriate time. They then got 
their $5-an-acre payment. The levels of atrazine in the lake 
have dropped to below the drinking water standard.
    We have used the Buffer Initiative. We provide a State 
incentive payment on top of the CRP payment to enroll buffer 
strips, again in targeted areas to reduce runoff. We've had 
very good luck getting people to enroll. We're doing the 
monitoring now to see what kind of results that we've had. The 
city of Wichita in the Cheney Lake project put a million 
dollars in of their own money with some Federal moneys and some 
State moneys to work with producers to reduce non-point 
loadings so that they wouldn't have to build an addition on to 
their drinking water plant.
    So, we've had a lot of good luck with providing the 
payments. But, you have to provide the understanding of how it 
helps them economically. I mean it doesn't help a producer to 
put on atrazine and have it all run in the river because it 
doesn't do it's job. And help them do the kinds of things that 
need to be done. But it was very successful. And now that 
incentive program is over and all of the landowners in that 
basin are continuing to apply the atrazine in the best 
management practice manner even without the incentive.
    Senator Crapo. I just have a couple of more questions. But 
Mr. Parrish, I'd like to ask your observation on this and 
anybody else who wants to pitch in on this. There's a voluntary 
approach there, sort of an incentive-based approach that a 
State has come up with. How does the EPA or how should the EPA 
evaluate this in terms of determining whether the States plan 
is going to achieve the objective? It seems to me that you 
don't know whether a States proposal is going to work until 
you've been out experiencing it for 5 or 10 or 15 years or 
whatever the time period is. And yet the State or the EPA has 
to approve this up front, doesn't it? How does that all work?
    Mr. Parrish. The EPA has to approve non-point source 
reduction components of a proposed TMDL in advance of the 
implementation. These are the types of programs EPA has said 
would likely be approved. And the types of factors are whether 
there is, in fact, some funding to support them. Whether there 
is a track record. Whether there are educational materials and 
a program for getting them out to the landowners. These are the 
types of programs that distinguish a reasonably likely success 
from a wing and a prayer.
    But if you propose a non-point source reduction from 
agriculture, forestry or anything else and you don't really 
have any solid reason for predicting that it will succeed, then 
that's the type of program I would expect EPA to say, ``No, we 
need better than this.''
    Senator Crapo. OK. The last issue or question I want to get 
at is one that we've talked about a little already, but I want 
to just explore it a little bit one more time with the panel.
    I'm a very big proponent of collaborative decisionmaking 
and in my opening statement I referred to a book by Dan Kemmis 
from Montana that talks about that issue in some context. To me 
collaborative decisionmaking just by definition means that 
people from all the perspectives that we can get, as broad a 
base as we can get, come together and sit down and try to 
understand each others concerns, define objectives and figure 
out solutions and try to do so in a way that is a win/win for 
everybody.
    In fact, Dan Kemmis puts a chart in his book which he got 
from somebody else. Which is an X/Y axis, with say the X axis 
being the economy and the Y axis being the environment. And he 
makes the argument which I agree with, that the current 
environmental decisionmaking process that we often find 
ourselves in results in solutions on that X/Y axis graft that 
are close to the intersection of the two axis, namely they're 
low for the environment and low for the economy. And they're 
really high on conflict, but they're low in terms of results 
from whichever perspective of those two parameters that you 
choose to view it.
    He also contends and which I agree with, that there are 
solutions that are further up on the X and further out on the 
Y, or further out on the Y and out on the X axis, that are 
higher for the economy, better for the economy and better for 
the environment. And that those solutions are best achieved by 
people who are closest to the particular issue that is being 
discussed.
    With that in mind as a kind of perspective that I come 
from, it seems to me that true collaborative decisionmaking 
means that the--must mean that the people who are sitting at 
the table doing the collaborating have to have the ability to 
make the decision. And that if there is someone at the table or 
someone who's not at the table who is ultimately going to make 
the decision then it's not really collaboration. It might be 
advice or consultation and it might be a good discussion, but 
it's not really a circumstance in which people from competing 
perspectives, competing interests and competing jurisdictions 
are sitting down and if you will, I don't think it's exactly 
this way, but negotiating about how to achieve these results 
which hopefully are better on both the economy and the 
environmental axis. And I would just like your comment on that.
    What I'm really getting at is this question of whether we 
will be able to have effective collaboration if, in this case, 
the EPA is the one who holds all the cards on being able to 
make the decision or said another way, perhaps this FACA 
Committee with all the different perspectives at the table 
should have been able to make the decision and it would be 
binding and would we have had a better solution had something 
like that worked? Mr. Nielsen.
    Mr. Nielsen. Mr. Chairman, my experience with this comes 
from some demonstration projects that we did throughout the 
State of Wisconsin. I don't think even at the FACA level these 
decisions can be made. You have to actually have the landowners 
and the people in that actual watershed that are sitting at the 
table making the decisions.
    Ms. Adams brought up the trading program. The trading 
program that is prescribed by the EPA and the offset program is 
fatally flawed. Trading programs do work, but they only work on 
a local level where there's joint and mutual benefit.
    I need to trade copper, there's nobody in the agriculture 
community that's going to trade copper with me. I need to trade 
zinc, I can't find anybody even--no one in the manufacturing 
community is going to trade copper or zinc with me either. So 
we're in a bind. We're faced with a couple million dollars 
improvement to our sewage treatment plant.
    So, those are the kind of--the solutions and you've said 
this and other people throughout the hearing, the solutions 
really rest at the local level. And they're going to have to be 
hammered out watershed by watershed. I've seen some problems 
with that. You run into problems of political jurisdiction. In 
the State of Wisconsin we can't even get our neighboring 
township to cooperate with us, so I think you're going to have 
to set up governmental units that deal with it on a watershed 
basis.
    California has done this, they're way ahead of the curve on 
those.
    The other problem you run into and Mrs. Adams alluded to 
this, when you're dealing with farmers and the price of milk. 
I'm not here to talk about milk even though I'm from Eau 
Claire. The price of milk goes below $10 per hundred weight, 
the farmers are saying, ``I'd love to do this, but I'm just 
trying to survive.''
    Senator Crapo. ``I can't.'' Right.
    Mr. Holm.
    Mr. Holm. This brings up an issue that I'd hope to touch on 
earlier and that is that what you're talking about in the way 
of collaborative decisionmaking takes time and it costs money. 
And that's not been built-in to this proposal at all. Not in 
any way, shape or form. You have to host these kinds of 
watershed conversations. It takes gifted people to do that so 
that it does become a collaboration. It takes creative people 
that are going to persist until they really do find that point 
that you're describing where it's win/win, it's least cost, and 
most benefit. It takes trust building. It takes a lot to 
achieve that goal. And it's exactly what we ought to have 
before us as the goal, the next goal for water quality 
management.
    It's not a quick hit. But the point I wanted to make is 
that it's not going to be free either at the community process.
    Senator Crapo. Good point. Mr. Parrish.
    Mr. Parrish. I would say this program presents an enormous 
opportunity for collaboration, but it is not going to be 
completely unbound. There is nationwide interest in clean 
water, and there are national standards in place that can only 
be departed from with a specific demonstration that it's in a 
very strong local interest to depart from those standards.
    But in terms of choosing how to meet that goal, there's 
almost complete discretion built into this program as long as 
what the State and local efforts decide upon has a reasonably 
good chance of succeeding.
    Now as far as time, we've got 15 years built into the 
regulations as is, and this is on top of almost 30 years of 
experience or perhaps not so much experience, after the 
requirement first was adopted by Congress. I think we've taken 
more than enough time already, and we have an awful lot of 
additional time built into the regulations as is. Resources and 
money, I agree, we're going to need more across the board. EPA 
is proposing almost $100 million more this year. I think that's 
going to get us well down the road. Some States are already 
proposing or rather appropriating additional moneys of their 
own because they're not willing to wait on the Federal funding.
    You're going to see a mixed bag across the country. We've 
got a lot to learn, but we're not going to learn any of it just 
talking about our commitment to clean water.
    Senator Crapo. Mr. Archey.
    Mr. Archey. I think if we're trying to achieve that farther 
out X and higher Y it's possible certainly in the context of 
collaboration. The thing that comes to mind to me, for 
instance, is if we're going to require people to do more things 
at greater costs because of public benefits for instance, clean 
water off their property because of their activities, then we 
better be able to somehow reward that good work. And I think 
that kind of thing will push that intersection point up there 
where we realize that we want both. But if we want both, let's 
pay for the one that may be suffering the most.
    Mr. Nielsen. Mr. Chairman, I think you mentioned you were--
you've been a Senator for 7 years.
    Senator Crapo. No, I've been in Congress for 7 years. I was 
in the House for 6 and this is going on 8 years.
    Mr. Nielsen. If you look at what was achieved in the early 
years of the Clean Water Act through dealing with point 
sources, most of that funding came from the Federal Government. 
This is a nationwide problem. And I would concur with the rest 
of the panelists that I think we need to look at Federal 
funding sources to deal with this nationwide issue.
    I would mention that Dan Kemmis, when he was the Mayor, 
served on our National League of Cities Board of Directors.
    Senator Crapo. Yes, he was the Mayor of Missoula, wasn't 
he?
    Mr. Nielsen. Was he in Missoula? I don't know; it was 
before my time. Missoula is a great town.
    Senator Crapo. All right, anybody else want to get in their 
last hit?
    [No response.]
    Senator Crapo. OK, let me thank you. I know that it's been 
a long afternoon for all of you, but these are very critical 
issues and I can assure you that this committee is going to pay 
very close attention to them. We want to find the right 
solutions and we're going to be paying as close attention as we 
can and perhaps finding some bipartisan solutions at this level 
or if possible driving it as far out as we can into the local 
regions with that flexibility we've talked about. But thank you 
all for your attendance here.
    The hearing is adjourned.
    [Whereupon, at 4:40 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
  Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
    Thank you, Mr. Chairman.
    This is an important hearing. The new Clean Water Act ``TMDL'' 
regulations cut right to the heart of the matter.
    That is, how do we keep making progress toward the goal, 
established in 1972, of ``restoring and maintaining the chemical, 
physical, and biological integrity of the nation's waters'' so that, 
wherever possible, those waters are fishable and swimmable (section 101 
of the Act).
    As we all know, we've made a lot of progress. But we're not there 
yet, by a long shot. More than 25 years after the original Clean Water 
Act was enacted, almost 40 percent of our waters still do not meet 
water quality goals.
    TMDLs can be an important part of the solution. But establishing a 
good TMDL program won't be easy.
    It's like it is with other pollution control laws. Imposing 
technology standards is the easy part, at least relatively speaking. 
Achieving ambient standards, in this case clean water, is the hard 
part.
    I think of a TMDL as a pollution budget for a watershed. Kind of 
like the Clean Water Act version of a Clean Air Act State 
implementation plan.
    Like with a SIP, establishing a pollution budget for a watershed is 
complex. What's the target? Who bears the burden? How do you monitor, 
and measure progress? How much authority rests with the States, rather 
than EPA?
    I think that, with some prodding from the courts, EPA is basically 
on the right track with these proposed new rules.
    But I have two general concerns.
    The first is with the proposal to repeal the regulation that treats 
most silviculture practices as nonpoint sources rather than point 
sources. I've written Administrator Browner about this, and Assistant 
Administrator Fox has made a partial reply, which I ask be included in 
the hearing record.
    I appreciate the progress that this exchange of letters represents. 
But I'm still not convinced that, as a matter of law or policy, EPA's 
silviculture proposal makes sense.
    My second concern is with the level of prescription in the new 
rules. Governor Racicot and others will address this.
    We need to make sure that, as the courts have insisted, EPA and 
States get on with the job of developing TMDLs.
    But we need to do so in a way that enhances, rather than detracts 
from, the operation of good State programs.
    I look forward to continuing to work with EPA, the States, and 
others to help strike the right balance.
                                 ______
                                 
      Statement of Marc Racicot, Governor of the State of Montana
    Mr. Chairman, Senator Reid, and members of the committee, I am Marc 
Racicot and I have the pleasure of serving as Governor of the State of 
Montana.
    I greatly appreciate the invitation to share my thoughts regarding 
the Clean Water Act and specifically Total Maximum Daily Load (TMDL). 
This is of great importance to our State, both to our people and the 
resources we cherish.
    We are pleased this committee is taking an active role in reviewing 
the Environmental Protection Agency's (EPA) proposed revisions to the 
agency's water quality regulations, 40 CFR Part 130, published in the 
Federal Register on August 23, 1999.
    Before I begin, I want to mention to the subcommittee members that 
I have attached to my testimony the formal comments I submitted on 
behalf of the State of Montana to EPA on this proposed rule. Our 
State's natural resource agencies worked together to analyze the 
proposed rule and to develop the consensus comments attached.
    The State of Montana is very committed to achieving the clean water 
goals set forth in Section 303(d) of the Clean Water Act (CWA). This is 
especially demonstrated through our 1997 passage of State legislation 
pertaining to the Total Maximum Daily Load (TMDL) process.
    Our TMDL amendments to the Montana Water Quality Act successfully 
address many of the same issues that are now the focus of EPA's 
proposed rules. Our comprehensive State law establishes 303(d) listing 
methodologies and criteria, specifies a public involvement plan, sets a 
10-year schedule for statewide TMDL development, addresses TMDL 
implementation and monitoring, and authorizes pollution offsets.
    As well, our State TMDL program funding appropriation provides new 
State revenues for accelerated water quality problem solving. Indeed, 
we are currently achieving at the State level what EPA hopes to 
accomplish nationally with the proposed rules.
    EPA's presumption that solutions to long-standing national TMDL 
issues must be prescribed within the context of new Federal regulations 
is at the core of Montana's concerns over the proposals. We fear that 
the program changes envisioned by EPA will add unnecessary and 
inappropriate specificity that will ultimately hinder the success of 
our current program.
    The proposed changes could seriously compromise our State program 
goals and strategy, undermine recent intensive implementation efforts 
and public trust, and reduce our overall progress in achieving the 
water quality restoration goals of the Federal Clean Water Act.
    Mr. Chairman, I would like to mention briefly the process which 
lead up to enactment of our State law. And, I must confess, we are very 
proud of the work we have accomplished to date.
    A dialog was begun late in 1996 between Montana natural resource 
agencies, businesses and industries, and conservation groups to gage 
interest in developing State TMDL legislation which would address these 
concerns. A briefing paper was developed and distributed and a broad 
range of interests were invited to participate on a work group to draft 
legislation.
    Over several weeks, the group met regularly to revise drafts of a 
bill and to try to achieve consensus on bill content. While complete 
agreement was not achieved prior to the deadline for submitting the 
bill, remarkable progress was made in coming together on many of the 
issues. This effort paid off in strong support for passage of the bill 
in both houses of Montana's legislation and few amendments in the 
legislative process. House Bill 546 was passed into law in the State of 
Montana and became immediately effective with my signature on May 5, 
1997. Funding totaling nearly $1.4 million for the biennium was also 
provided by the Montana legislature.
    At the heart of Montana's program is the TMDL Advisory Council. The 
Council is made up of representatives from agriculture, industry, 
environmental groups, State and Federal agencies, and recreationists. 
The group provides input and advice to State decisionmakers and 
professional staff, and helps insure that the development and 
implementation of measures to improve water quality are truly grass 
roots approaches. We believe that those landowners and users who are 
asked to host and support on-the-ground measures should have a say in 
their development.
    Although EPA's stated objective in developing the proposed rules 
was to strengthen the efficiency and effectiveness of the Clean Water 
Act's TMDL program, the rules do little to accomplish this objective. 
Instead, the new regulations would add unnecessary complexity to 
Montana's ability to develop TMDLs in a timely fashion. The new 
regulations appear to focus on listkeeping and technical reporting to 
EPA, rather than effective assessment, implementation, and resolution 
of water quality problems. The rules also create a regulatory framework 
that is inherently inconsistent with section 303(d) of the CWA.
    Specifically, the rules create a presumption that a State's entire 
TMDL program, including its process and methodology of identifying 
impaired waters, prioritizing those waters, developing TMDLs for those 
waters, and addressing nonpoint sources in its TMDL process, are all 
subject to EPA's approval. In effect, the rules provide EPA with a 
``veto'' power over a State's entire TMDL program. This is not a power 
envisioned by Congress when it granted EPA a limited oversight role to 
review a State's submission of lists and TMDLs under section 303(d). 
The State of Montana objects to the imposition of regulations 
establishing regulatory requirements over every component of a State's 
TMDL program when Congress has not sanctioned that approach.
    One of the primary drawbacks of EPA's proposed regulations is that 
they impose numerous regulatory details to address prior inefficiencies 
in TMDL development that have already been addressed by many States. 
Montana has already accomplished what EPA is attempting to achieve 
through the proposed rules. Montana is already more than 2 years into 
the process of making comprehensive changes to its 303(d) listing 
methodology and creating a publicly supported approach to development 
of TMDLs. We have a TMDL development schedule, new listing methods and 
decision criteria, a new publicly accessible data base to support 
listing decisions, a new TMDL prioritization process, and we have been 
working with local groups to ensure that TMDLs will be implemented over 
the long term with reasonable assurance.
    Also, Montana's monitoring provisions require that after 5 years, 
TMDL plans will be evaluated to determine if implementing organizations 
are making satisfactory progress. While we recognize the need for 
consistent guidance to States and the public regarding TMDLs, the new 
regulations do not give those States already implementing programs of 
their own enough latitude to determine appropriate management measures, 
especially for land use-related nonpoint source problems.
    In its finalization of the rules, EPA must acknowledge that Montana 
and many other States have already developed processes, methods and 
approaches to meet court, legislative or stakeholder demands for their 
existing TMDL programs. In many cases, EPA's proposed new substantive 
rules might be disruptive and expensive to States that have already 
developed effective TMDL programs endorsed by stakeholders and elected 
officials. This issue is at the forefront of Montana's concerns with 
the rules as currently proposed.
    Existing processes and approaches that meet court decrees and/or 
provide positive and beneficial results should not be compromised or 
superseded by these new rules. At the same time, States should be 
encouraged to be innovative in developing new processes and approaches 
that achieve the results envisioned by these rules in a more efficient 
manner.
    With this in mind, the State of Montana encourages EPA to apply a 
``functional equivalency'' test to State TMDL programs prior to the 
imposition of any new program requirements. The test would provide a 
demonstration that a State process, method or approach achieves the 
same desired results intended to be achieved by the proposed rules. 
There are numerous examples of these cases, including how States 
prioritize their lists, incentives that States have built into their 
programs to achieve correction of impaired conditions in lieu of a 
TMDL, and recognition of various approaches to implementing TMDLs.
    Frankly, Mr. Chairman, we strongly believe EPA must recognize that 
``one size does not fit all'' and the TMDL rules must remain open to 
alternative methods of doing business that achieve comparable results.
    We are also seriously concerned about the fiscal implications of 
the proposed changes. By all indications, the proposed program and its 
increased scientific rigor and reporting burden would cost 
substantially more to administer while achieving fewer water quality 
improvement results. The State of Montana operates its current TMDL 
program on a limited budget but achieves a high degree of efficiency 
through local leadership and volunteerism and by minimizing 
administrative overhead costs. Increasing program administrative costs 
would translate directly to less money available for local, on-the-
ground implementation of water quality improvement measures.
    The State of Montana is very concerned that the new TMDL rules 
would result in significant additional costs to States over current 
law. According to EPA's Water Quality Workload Model, Montana currently 
has minimal resources to run a TMDL program under the rules as they now 
stand. Currently, the Montana Department of Environmental Quality (DEQ) 
has about 13 FTE (full time employees) committed to water quality 
standards activities, including monitoring, reporting and TMDL 
activities, with a budget of about $1.35 million. EPA's Water Quality 
Workload Model: Draft Module 2, when calibrated to Montana's 
parameters, suggests that 58 FTE and a total budget of about $4.9 
million would be needed to implement TMDLs on time under the rules as 
they now stand.
    It follows then that the new and more complicated rules proposed by 
EPA would set back the staff and unduly slow the TMDL process unless 
additional resources were obtained. In addition, the new rules undo 
much of the work and fiscal investments already put into Montana's 
current TMDL program. By our most conservative estimate, DEQ would need 
at least twice the current resources to comply with the proposed rules 
in a timely fashion. Our best guess is that between 22 and 24 
additional FTE over the 13.5 currently employed would be needed to 
comply with the new TMDL rules, along with several tens of thousand of 
dollars in new equipment.
    Again, Mr. Chairman, for the new regulations to be successful in 
achieving national clean water goals, they must accommodate a degree of 
flexibility on the part of the States that are charged with primary 
responsibility to implement the TMDL program. The rules must 
acknowledge that individual States are in the best position to 
formulate the most effective and efficient water quality improvement 
strategies for their regions.
    The rules must also recognize that States have primary 
responsibility for achieving water quality improvements through State 
authorized and funded programs. EPA also needs to carefully consider 
the water quality consequences of proposed program changes toward more 
intensive agency list keeping, administrative oversight and analytical 
rigor, and less focus on community based water quality problem solving.
    The top-down, prescriptive complexion of the proposed rule is 
contrary to the Clean Water Act and contrary to Montana's grassroots 
approach to TMDL development. Last, but no less importantly, EPA must 
remain sensitive to the need for additional State resources if national 
clean water goals are to be further expedited. In accordance with these 
basic tenants, the State of Montana recommends the following changes to 
the proposed rule:
    1. We support the need for a consistent, technically sound and 
well-documented listing methodology as the foundation for State TMDL 
programs. EPA should provide non-regulatory guidance to aid States in 
developing sound methods, should accommodate flexibility in adopting 
these methods, and should accept methods documentation on the same 
schedule as the 303(d) List submittal.
    2. EPA should require the submittal of a one-part 303(d) List of 
water quality-limited segments and should retain an optional provision 
for listing threatened waters and those impacted solely by 
``pollution''. A tracking mechanism is needed for water quality-limited 
segments with approved TMDLs, but decisions to retain or de-list water 
bodies following TMDL approval and pending water quality standards 
attainment are best left to the States.
    3. We support changes that would require less frequent mandatory 
reporting. EPA should adopt a 5-year 303(d) reporting cycle and retain 
current provisions for interim list modifications.
    4. The State of Montana supports the proposed 8- to 15-year TMDL 
scheduling requirement, but recommends the inclusion of provisions for 
periodic adjustments during subsequent listing cycles. We urge EPA to 
continue to accommodate State flexibility in establishing TMDL 
prioritization criteria and in targeting water bodies for TMDL 
development. Specifically, endangered species and drinking water issues 
should be considered in State TMDL priority setting, but should not 
necessarily take precedence over all other possible State concerns and 
priorities.
    5. We support the need for timely implementation of TMDLs, 
including the need for accountability and reasonable assurance of water 
quality improvement. These concepts are an important part of Montana's 
program and implementation plans are a standard component. However, we 
propose that EPA's minimum required TMDL elements be provided in the 
form of guidance to States, not regulations. Allowances for future 
growth, however, are a local issue that should not be addressed within 
the guidance.
    6. We encourage EPA to retain States' discretion to use alternative 
expressions of TMDL water quality improvement targets in lieu of actual 
load reductions, in cases where this is appropriate. This is consistent 
with EPA's current TMDL development guidance and would ensure the 
needed State flexibility to select the most appropriate and cost-
effective units of TMDL expression for each water quality improvement 
project.
    7. We fully endorse the need for public involvement in all phases 
of the TMDL process and this is at the cornerstone of Montana's 
program. However, additional EPA specificity in this regard, achieved 
through rule revisions, is unnecessary and unwarranted.
    8. EPA should recognize the States' primary role in implementing 
Section 303(d) and should not create a petition process that encourages 
EPA intervention in State TMDL programs. If this concept is to be 
retained in the rule, specific requirements should be added which 
require petitioners to demonstrate a good faith effort to resolve their 
issues with the State and to submit relevant supporting information. 
States should also be granted an opportunity within the rule to respond 
to petitions prior to any intervention on the part of EPA.
    9. EPA should approve any State TMDL submitted within 12 months of 
the final rule changes as long as it meets pre-amendment or post-
amendment requirements.
    10. The required inclusion of atmospheric deposition in non-point 
source pollution load allocations is premature, given the State of the 
available science. States should be delegated the authority to decide 
how and when, on a case-by-case basis, State air quality management 
issues should be coupled with the TMDL process.
    11. Montana supports the concept of giving special consideration to 
threatened and endangered species during the TMDL process. Montana does 
not agree, however, that the rules should require States to engage in 
the consultation procedures applicable to Federal agencies under 
Section 7 of the Endangered Species Act. Instead, the rules should 
simply require States to informally involve the assistance of the U.S. 
Fish and Wildlife Service during TMDL development.
    12. Considering that the new TMDL rule would result in significant 
additional costs to the State of Montana, we recommend that EPA more 
accurately quantify these costs and address solutions to the 
anticipated State fiscal shortfalls before finalizing the rule package.
    Finally, Mr. Chairman, we are concerned that, despite receiving 
several tens of thousands of comments on the proposed rulemaking, EPA 
intends to ``fast track'' the proposed rules into adoption this summer. 
We ask that the agency consider carefully the concerns expressed by 
various States and stakeholders, and reserve to those States the 
discretion to continue to administer the TMDL programs in which we have 
invested so much effort and are receiving such good results.
    Again, Mr. Chairman and Senator Reid, thank you for the invitation 
to join you today and for considering our thoughts on this important 
issue.
                                    Office of the Governor,
                                      Helena, MT, January 19, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.

Attn: Water Docket (W-98-31)

Re: Proposed Revisions to the Water Quality Planning and Management 
Regulations

    Dear Administrator Browner: I am writing to you on behalf of the 
State of Montana concerning the Environmental Protection Agency's 
proposed revisions to the agency's water quality regulations, 40 CFR 
Part 130, published in the Federal Register on August 23, 1999. We 
appreciate the opportunity to comment on the proposed rule. Our State 
natural resource agencies have worked together to analyze the proposed 
rule and to develop consensus comments.
    The State of Montana is very committed to achieving the clean water 
goals set forth in Section 303(d) of the Clean Water Act (CWA), as 
demonstrated through our 1997 passage of State legislation pertaining 
to the Total Maximum Daily Load (TMDL) process. Our TMDL amendments to 
the Montana Water Quality Act successfully address many of the same 
issues that are now the focus of EPA's proposed rules. Our 
comprehensive State law establishes 303(d) listing methodologies and 
criteria, specifies a public involvement plan, sets a 10-year schedule 
for statewide TMDL development, addresses TMDL implementation and 
monitoring, and authorizes pollution offsets. As well, our State TMDL 
program funding appropriation provides new State revenues for 
accelerated water quality problem solving. Indeed, we are currently 
achieving at the State level what EPA hopes to accomplish nationally 
with the proposed rules.
    EPA's presumption that solutions to long-standing national TMDL 
issues must be prescribed within the context of new Federal regulations 
is at the core of Montana's concerns over the proposals. We fear that 
the program changes envisioned by EPA will add unnecessary and 
inappropriate specificity that will ultimately hinder the success of 
our current program. We encourage the application of a ``functional 
equivalency test'' to State TMDL programs prior to considering the need 
for more Federal oversight. Montana would very likely pass such a test.
    For the new regulations to be successful in achieving national 
clean water goals, they must accommodate a degree of flexibility on the 
part of the States that are charged with primary responsibility to 
implement the TMDL program. The rules must acknowledge that individual 
States are in the best position to formulate the most effective and 
efficient water quality improvement strategies for their regions. The 
rules must also recognize that States have primary responsibility for 
achieving water quality improvements through State authorized and 
funded programs. EPA also needs to carefully consider the water quality 
consequences of proposed program changes toward more intensive agency 
list keeping, administrative oversight and analytical rigor, and less 
focus on community based water quality problem solving. The top-down, 
prescriptive complexion of the proposed rule is contrary to the CWA. 
and contrary to Montana's grassroots approach to TMDL development. 
Last, but no less importantly, EPA must remain sensitive to the need 
for additional State resources if national clean water goals are to be 
further expedited. In accordance with these basic tenants, the State of 
Montana recommends the following changes to the proposed rule:
    1. We support the need for a consistent, technically sound and 
well-documented listing methodology as the foundation for State TMDL 
programs. EPA should provide non-regulatory guidance to aid States in 
developing sound methods, should accommodate flexibility in adopting 
these methods, and should accept methods documentation on the same 
schedule as the 303(d) List submittal.
    2. EPA should require the submittal of a one-part 303(d) List of 
water quality-limited segments and should retain an optional provision 
for listing threatened waters and those impacted solely by 
``pollution''. A tracking mechanism is needed for water quality-limited 
segments with approved TMDLs, but decisions to retain or de-list water 
bodies following TMDL approval and pending water quality standards 
attainment are best left to the States.
    3. We support changes that would require less frequent mandatory 
reporting. EPA should adopt a 5-year 303(d) reporting cycle and retain 
current provisions for interim list modifications.
    4. The State of Montana supports the proposed 8-15-year TMDL 
scheduling requirement, but recommends the inclusion of provisions for 
periodic adjustments during subsequent listing cycles. We urge EPA to 
continue to accommodate State flexibility in establishing TMDL 
prioritization criteria and in targeting water bodies for TMDL 
development. Specifically, endangered species and drinking water issues 
should be considered in State TMDL priority setting, but should not 
necessarily take precedence over all other possible State concerns and 
priorities.
    5. We support the need for timely implementation of TMDLs, 
including the need for accountability and reasonable assurance of water 
quality improvement. These concepts are an important part of Montana's 
program and implementation plans are a standard component. However, we 
propose that EPA's minimum required TMDL elements be provided in the 
form of guidance to States, not regulations. Allowances for future 
growth, however, are a local issue that should not be addressed within 
the guidance.
    6. We encourage EPA to retain States' discretion to use alternative 
expressions of TMDL water quality improvement targets in lieu of actual 
load reductions, in cases where this is appropriate. This is consistent 
with EPA's current TMDL development guidance and would ensure the 
needed State flexibility to select the most appropriate and cost-
effective units of TMDL expression for each water quality improvement 
project.
    7. We fully endorse the need for public involvement in all phases 
of the TMDL process and this is at the cornerstone of Montana's 
program. However, additional EPA specificity in this regard, achieved 
through rule revisions, is unnecessary and unwarranted.
    8. EPA should recognize the States' primary role in implementing 
Section 303(d) and should not create a petition process that encourages 
EPA intervention in State TMDL programs. If this concept is to be 
retained in the rule, specific requirements should be added which 
require petitioners to demonstrate a good faith effort to resolve their 
issues with the State and to submit relevant supporting information. 
States should also be granted an opportunity within the rule to respond 
to petitions prior to any intervention on the part of EPA.
    9. EPA should approve any State TMDL submitted within 12 months of 
the final rule changes as long as it meets pre-amendment or post-
amendment requirements.
    10. The required inclusion of atmospheric deposition in non-point 
source pollution load allocations is premature, given the State of the 
available science. States should be delegated the authority to decide 
how and when, on a case-by-case basis, State air quality management 
issues should be coupled with the TMDL process.
    11. Montana supports the concept of giving special consideration to 
threatened and endangered species during the TMDL process. Montana does 
not agree, however, that the rules should require States to engage in 
the consultation procedures applicable to Federal agencies under 
Section 7 of the Endangered Species Act. Instead, the rules should 
simply require States to informally involve the assistance of the U.S. 
Fish and Wildlife Service during TMDL development.
    12. Considering that the new TMDL rule would result in significant 
additional costs to the State of Montana, we recommend that EPA more 
accurately quantify these costs and address solutions to the 
anticipated State fiscal shortfalls before finalizing the rule package.
    Attached is our compendium of detailed comments and analyses that 
support these recommendations. Thank you again for the opportunity to 
comment on these very important regulations. We look forward to working 
with EPA to develop a final rules package that will support and enhance 
our mutual clean water objectives.
            Sincerely,
                                              Marc Racicot,
                                                          Governor.
                                 ______
                                 
Detailed Comments by the State of Montana on Proposed Revisions to the 
     Water Quality Planning and Management Regulations, 40 CFR 130

                              INTRODUCTION

    The State of Montana provides the following comments regarding 
EPA's efforts to improve the quality of the nation's waters through the 
water quality-based management approach outlined in Section 303(d) of 
the Clean Water Act (CWA). Our commitment to this process is perhaps 
best demonstrated through our recent passage of legislation to 
implement comprehensive State water quality assessment and TMDL 
development. These 1997 amendments to the Montana Water Quality Act 
provide specific State authority to implement the provisions of Section 
303(d) and outline the methodologies, framework and schedule for 
assessing water quality statewide, and for developing and implementing 
TMDLs for threatened and impaired stream segments and lakes. Our 
primary concerns over proposed changes to the Federal TMDL regulations 
stem from anticipated conflicts with our existing State program. The 
proposed changes could seriously compromise our State program goals and 
strategy, destroy recent intensive implementation efforts and public 
trust, and reduce our overall progress in achieving the water quality 
restoration goals of the Federal CWA.
    Although EPA's stated objective in developing the proposed rules 
was to strengthen the efficiency and effectiveness of the CWA's TMDL 
program, the rules do little to accomplish this objective. Instead, the 
new regulations would add unnecessary complexity to Montana's ability 
to develop TMDLs in a timely fashion. The new regulations appear to 
focus on listkeeping and technical reporting to EPA, rather than 
effective assessment, implementation, and resolution of water quality 
problems. The rules also create a regulatory framework that is 
inherently inconsistent with Section 303(d) of the CWA. Specifically, 
the rules create a presumption that a State's entire TMDL program, 
including its process and methodology of identifying impaired waters, 
prioritizing those waters, developing TMDLs for those waters, and 
addressing nonpoint sources in its TMDL process, are all subject to 
EPA's approval. In effect, the rules provide EPA with a ``veto'' power 
over a State's entire TMDL program. This is not a power envisioned by 
Congress when it granted EPA a limited oversight role to review a 
State's submission of lists and TMDLS under Section 303(d). The State 
of Montana objects to the imposition of regulations establishing 
regulatory requirements over every component of a State's TMDL program 
when Congress has not sanctioned that approach.
    One of the primary drawbacks of EPA's proposed regulations is that 
they impose numerous regulatory details to address prior inefficiencies 
in TMDL development that have already been addressed by many States. 
From Montana's perspective, EPA is attempting to do too much too late 
in the process. Montana is already more than 2 years into the process 
of making comprehensive changes to its 303(d) listing methodology and 
creating a publicly supported approach to development of TMDLs. Montana 
is addressing the same issues that EPA is proposing to address in its 
new regulations. We have a TMDL development schedule, new listing 
methods and decision criteria, a new publicly accessible data base to 
support listing decisions, a new TMDL prioritization process, and we 
have been working with local groups to ensure that TMDLs will be 
implemented over the long term with reasonable assurance. Finally, 
Montana has a monitoring requirement that after 5 years TMDL plans will 
be evaluated to determine if implementing organizations are making 
satisfactory progress. While we recognize the need for consistent 
guidance to States and the public regarding TMDLs, the new regulations 
do not give those States already implementing programs of their own 
enough latitude to determine appropriate management measures, 
especially for land use-related nonpoint source problems.
    The proposed regulations also take a highly technical approach to 
developing TMDLs involving water quality modeling, quantifying actual 
loading rates, and generally providing for an unrealistic degree of 
scientific certainty in establishing TMDLs. This approach would push 
most of the TMDL work toward highly specialized water quality 
professionals in State government and away from community-based 
watershed groups and local governments. If the regulations were written 
to recognize the importance of local leadership and public involvement, 
they would encourage more flexible approaches to resolving water 
quality concerns.
    EPA's FACA (Federal Advisory Committee Act) group recognized the 
need for flexibility in the TMDL process. In the draft regulation, EPA 
appears to have ignored key recommendations of the group in developing 
the proposed regulations. These recommendations include the ability for 
States to include, in some instances, ``surrogate measures and measures 
other than daily loads'' and ``taking an iterative approach to TMDL 
development and implementation [to] assure progress toward water 
quality standards attainment. . .  These issues are directly addressed 
in the guidance document that accompanied the draft regulations. This 
document allows more flexibility than the draft regulation on these 
issues. A question might arise as to which applies if the regulations 
are not adjusted to provide some allowance for these approaches.
    We are also concerned about the proposed definitional focus on 
pollutants and not pollution. This aspect of the rules makes it appear 
that EPA is retreating from the broader Clean Water Act goals 
(chemical, physical and biological integrity) and focusing on just one 
type of water quality problem--those that can be calculated in terms of 
load. This approach ignores current new understandings in water quality 
science relating to roles of changes in hydrology, habitat quality and 
biological indicators relating to water quality. It also seems to 
ignore the fact that about 90 percent of Montana's (and many other 
western States') water quality problems stem from nonpoint source 
pollution and related habitat degradation. The proposed TMDL program 
would require us to focus on a relatively small subset of our State's 
water quality problems and would slow our pace at achieving 
comprehensive statewide water quality improvements. The proposed 
regulations do not appear to support the CWA's ``clean water'' bottom 
line in this regard.
    The State of Montana is concerned about proposed changes to the 
303(d) List and supports the retention of one List, to include water 
bodies impaired, or threatened, as a result of habitat degradation, 
flow alteration, and non-point pollution. Our current program focuses 
on comprehensive water quality problem solving, including development 
of water quality improvement strategies for all listed water bodies, 
within a reasonable (10-year) timeframe. At the same time, we must 
reserve the right to be flexible in how we address our problems. For 
example, our experience has shown that water quantity issues can be 
addressed creatively among willing players and within the confines of 
existing law. In this regard Montana's TMDL program is stronger than 
EPA's proposal, which chooses not to require TMDLs for impairments 
resulting from ``pollution,'' including habitat and flow alterations. 
The principles of innovation and creative, but comprehensive, problem 
solving are at the core of our State TMDL law and the proposed rules 
would eliminate much of this current flexibility.
    In its finalization of the rules, EPA must acknowledge that Montana 
and many other States have already developed processes, methods and 
approaches to meet court, legislative or stakeholder demands for their 
existing TMDL programs. In many cases, EPA's proposed new substantive 
ruses might be disruptive and expensive to States that have already 
developed effective TMDL programs endorsed by stakeholders and elected 
officials. This issue is at the forefront of Montana's concerns with 
the rules as currently proposed. Existing processes and approaches that 
meet court decrees and/or provide positive and beneficial results 
should not be compromised or superseded by these new rules. At the same 
time, States would be encouraged to be innovative in developing new 
processes and approaches that achieve the results envisioned by these 
rules in a more efficient manner. The State of Montana encourages EPA 
to apply a ``functional equivalency test to State TMDL programs prior 
to the imposition of any new program requirements. The test would 
provide a demonstration that a State process, method or approach 
achieves the same desired results intended to be achieved by the 
proposed rules. There are numerous examples of these cases, including 
how States prioritize their lists, incentives that States have built 
into their programs to achieve correction of impaired conditions in 
lieu of a TMDL, and recognition of various approaches to implementing 
TMDLs. EPA must recognize that ``one size does not fit all'' and the 
TMDL rules must remain open to alternative methods of doing business 
that achieve comparable results.
    As we've said previously, we're also seriously concerned about the 
fiscal implications of the proposed changes. By all indications, the 
proposed program and its increased scientific rigor and reporting 
burden would cost substantially more to administer while achieving 
fewer water quality improvement results. The State of Montana operates 
its current TMDL program on a limited budget but achieves a high degree 
of efficiency through local leadership and volunteerism and by 
minimizing administrative overhead costs. Increasing program 
administrative costs would translate directly to less money available 
for local, on-the-ground implementation of water quality improvement 
measures.
    In the following pages we are providing you with more detailed 
comments and analyses of these and other aspects of the proposed 
regulations.

                        303(D) LIST DEVELOPMENT

    It is Montana's position that a consistent, technically sound, 
well-documented listing methodology is a critical component of any TMDL 
program. Montana's State TMDL law establishes standards for data 
quantity and quality, and the Department of Environmental Quality (with 
comments from the public and EPA) has developed detailed criteria for 
making beneficial use support determinations.
    We are committed to a high-quality listing process, but we see 
EPA's proposed process for submitting State listing methodologies to 
EPA as being unworkable. In Montana, with State law requiring a 60-day 
public comment period on a draft 303(d) List, the State must 
startupdating the list nearly a year before its due date, so our 
methodology must be essentially final at that time. Under the proposed 
process, a State would not receive EPA's comments on its methodology 
until three or 4 months (or even a few weeks) before the List submittal 
is due. At that point it would be impossible for the State to make any 
significant changes to its methodology in response to EPA comments.
    States occasionally may make major changes to their methodology, 
but most changes between editions of their list will be fine-tuning. 
Experience gained or the availability of new methods will create 
opportunities to make small improvements. If such fine-tuning can only 
be done at the cost of going through the cumbersome proposed process, 
States will likely choose to lock-in their existing methodology and 
forego making improvements.
    The list of factors [identified in Sec. 130.23(c) and (d) of the 
proposed regulations] which must be addressed in the methodology 
submission also is unacceptable. This listing obviously is not a 
comprehensive statement of the elements that a methodology would need 
to address, and some of the factors listed would not be relevant for 
all methodologies in all jurisdictions.
    Based on the concerns expressed in the preceding paragraphs, the 
State of Montana recommends adoption of an alternative approach, as 
follows:
    1. Retain the existing regulatory requirement that documentation of 
the methodology used to develop the List be submitted with the List. 
Include a requirement that the methodology address the factors to be 
considered in deciding what data and information to use, or not use, in 
making assessment decisions.
    2. Provide non-regulatory guidance, assistance and examples to aid 
States in developing sound methodologies. This would give the States 
the flexibility they need to develop methodologies suited to their 
specific needs.
    3. If a State submits a list based on an unacceptable methodology, 
disapprove the list if warranted, or identify concerns and put the 
State on notice that the next submittal will be disapproved if the 
deficiencies are not corrected.

                           303(D) LIST FORMAT

     The State of Montana is adamantly opposed to the proposed 303(d) 
List formatting scheme which would split the list into four separate 
parts. This proposal would hinder State efforts to improve the water 
quality of impaired waters by increasing the administrative workload 
and would complicate efforts to obtain public understanding and support 
for State TMDL programs. Montana requests that the single list format 
be retained with an optional provision for displaying pollutant/
pollution data when available. A separate mechanism should be used to 
track water bodies that have not ye attained standards though they are 
covered by a TMDL plan.
    The need for separating waters impacted by ``pollutants'' from 
those impacted by ``pollution'' is an artifact of the attempt to define 
the term TMDL as a plan rather than a load and of the legal hair-
splitting made necessary by that definition. In practice, making this 
distinction would require an amount and specificity of data that is 
almost never available when listing decisions are made. Even if a 
tremendous increase in the available funding were to give us the data 
needed for list partitioning, separating the list into separate parts 
would draw agency and public attention away from the program goal of 
correcting water quality impairment--regardless of its cause.
    Montana strongly agrees with the need to have an accounting 
mechanism for water quality-limited segments for which TMDLs have been 
approved but in which standards have not yet been attained, because 
this provides a continuing incentive to implement TMDLs and a 
recognition of where implementation is occurring. However, a separate 
tracking mechanism is needed and a number of alternatives are available 
to accomplish this goal, including the 305(b) statewide water quality 
assessment report, or the inclusion of separate appendices within the 
303(d) List. The proposed requirement to retain these water bodies on 
the actual 303(d) List until water quality standards are attained is in 
direct conflict with the Montana TMDL law. Our law, patterned after the 
current EPA protocol, provides for Relisting following TMDL development 
and approval. The current delisting provision has been a powerful 
motivator for participation in TMDL development and implementation by 
some landowners and local groups. We feel that discretion to delist or 
retain water bodies following TMDL approval by EPA legitimately belongs 
to individual States.

                    303(D) LIST FREQUENCY AND TIMING

    The State of Montana supports the adoption of a 5-year reporting 
cycle, with provisions for list modifications during the interim 
period. As Montana has worked to provide more information and better 
coverage of State waters in the 303(d) list and has developed a listing 
methodology considering chemical, physical, biological and habitat 
factors, the amount of effort and information required to compile the 
List has expanded tremendously. We have reached a point where the 
effort required to prepare biennial lists is taking resources away from 
water body monitoring and working with local watershed groups on 
developing TMDL plans. A change to a 5-year cycle would definitely 
reduce these problems.
    While we support changes that would require less frequent mandatory 
303(d) reporting, we urge EPA to accommodate interim additions and 
deletions to the State lists, based upon specific State requests and 
EPA review and approval. This would accommodate Montana's 303(d) 
petition process and would allow for timely de-listing of water bodies 
as TMDLs are approved or water quality standards are attained.
    Montana urges that April 1 be retained as the due date for the 
303(d) List. This schedule allows State staff to focus on data 
collection during the late spring and early summer field season, to 
compile a draft list during the fall, and to obtain public comment and 
finalize the list during the winter for April 1 submission. An October 
1 due date would make it impossible to incorporate data from the most 
recent field season into the list assessments, and would place the 
timing of the office work and public consultation effort needed for 
list compilation squarely in conflict with the field season.
    We understand that some States object to having the 303(d) List and 
the 305(b) Report due on the same date. Montana recommends that 
conflict with the 305(b) Report schedule can be avoided by encouraging 
States to submit only the minimal electronic version of the 305(b) 
Report in years when a 303(d) List is due.

               TMDL SCHEDULES, PRIORITIZATION AND TIMING

    Montana is concerned with EPA's proposal to require a high priority 
ranking for any waters where threatened or endangered species are 
present and for waters that are listed due to violations of the Safe 
Drinking Water Act's maximum contaminant levels (MCL). While the State 
agrees that protecting public health and endangered species is 
important, the State does not agree that it is EPA's responsibility to 
impose national priorities over State priorities. Given that EPA's 
approval authority extends only to the ``identification'' of impaired 
waters in the States' 303(d) Lists, Congress clearly intended that the 
prioritization of those waters should be left to the States. EPA should 
not go forward with this proposal, because States are in the best 
position to evaluate the truly significant water quality problems, 
including problems that are not related to endangered species and MCL 
violations, and to develop solutions for those problems according to 
local policies and priorities.
    The practical problems arising from EPA's proposal illustrate that 
States are better equipped to establish their priorities and assign 
resources to address those priorities in an effective and efficient 
manner. For example, if Montana were to assign high priority for all 
waters where threatened and endangered species are present, then a 
significant percentage of the State's current list of approximately 900 
impaired waters would immediately become-high priority. This is due 
primarily to the wide range of bull trout (Salvelinus confluentis) in 
streams west of the Continental Divide in Montana, and other listed 
species within the State. Developing TMDLs for potentially hundreds of 
high-priority streams within 5 years, as proposed by EPA, would not be 
feasible and would defeat the purpose of listing streams that require 
immediate attention.
    In order to avoid the high priority ranking of potentially hundreds 
of stream segments, Montana would be required to undertake the onerous 
task of proving to EPA that the impaired quality of those streams did 
``not affect'' the listed species. Montana believes that this would not 
be an efficient and effective use of State resources. States should be 
allowed the flexibility to establish realistic lists of priorities that 
can be addressed within a reasonable period of time. Establishing 
unrealistic timeframes for federally mandated ``high-priority waters 
without regard to State resources only invites failure from States that 
cannot comply with these requirements.
    TMDL development for some high priority water bodies can be complex 
and time consuming. States should be able to list as ``high priority'' 
impaired waters that are relatively simple to correct, particularly if 
the water segment is important to the local community and restoration 
efforts receive their full support. Efficiency at addressing water 
quality problems within a watershed context is another important 
consideration. A State's ability to develop TMDLs for separate listed 
segments within the same watershed and to bundle TMDLs must be 
accommodated. The States should be given the flexibility to address as 
``high priority'' impaired waters other than those associated with 
endangered species and MCL violations.
    The proposed scheduling requirement for establishing all TMDLs no 
later than 15 years from the date of initial listing is consistent with 
Montana's TMDL law, which establishes a 10-year schedule for completion 
of all TMDLs listed as of 1996. However, it is unreasonable to expect 
that a comprehensive schedule for the development of all TMDLs will not 
require modification over time. To help avoid unrealistic expectations 
and an illusion of certainty regarding the initial schedules submitted, 
EPA should explicitly recognize the potential need for modifications of 
schedules during subsequent listing cycles and establish some 
parameters for such modifications. For example, modifications should be 
allowed if States can provide a rationale demonstrating that 
substantial efforts have been undertaken and that new information or 
unanticipated difficulties make the previous schedule unrealistic or 
make a revised schedule more effective in making overall progress 
toward water quality improvement. In order to evaluate the need for 
such modifications, a review should be performed periodically, perhaps 
every 5 years. Alternatively, EPA may wish to consider requiring States 
to set more definitive, shorter-term TMDL development goals. This 
option would be especially compatible with our proposed 5-year 
reporting cycle and would allow greater assurances of compliance on the 
part of States.

                             TMDL ELEMENTS

    The draft regulations propose that any TMDL submitted to EPA for 
approval must contain 10 specific elements. Some of the elements are: 
quantification of the current pollutant loads, deviation from 
acceptable rates of loading, a detailed Implementation plane, and 
allowances for future growth which account for foreseeable increases in 
pollutant loads. Our specific concerns and recommendations on these 
selected minimum elements for TMDL approval are outlined below.

Identifying the pollutant load
    The State of Montana recommends that EPA revise 40 CFR 130.34 (b) 
to clearly specify that TMDLs may be expressed in terms of a numerical 
pollutant load or other appropriate surrogate measures. More discussion 
on this aspect of the proposed rules may be found in our comments under 
the heading How TMDLs are Expressed.''

Identify the deviation from pollutant load
    In accordance with our comments on identifying the pollutant load, 
EPA should revise 40 CFR 130.33 (b)(3) or alternative TMDL guidance to 
authorize the use of surrogate water quality targets in lieu of 
specific pollutant loads.

Allowance for Future Growth
    EPA proposes that each TMDL must provide an allowance for future 
growth, which accounts for any reasonably foreseeable increase in 
pollutant loads. Providing for future growth during the development of 
a TMDL is sound State and local policy and ensures that resulting water 
quality improvements can be maintained into the future. In fact, 
provisions for future growth have been addressed within some Montana 
TMDLs. However, EPA should not propose a requirement that is not 
supported by the CWA. Under the CWA, TMDLS must be established at the 
level necessary to achieve applicable water quality standards. In order 
to provide for future growth, States would now be required to establish 
TMDLs that result in water quality that is better than the standards in 
order to accommodate future increases of pollutant loads. Since the CWA 
does not require TMDLs to restore waters to a level better than the 
standards, EPA's rules should not. Clearly, the issue of providing for 
``future growth'' in the development of TMDLs is a local issue that 
Congress has left for the States to decide. EPA should not go forward 
with this proposal.
Implementation plans
    Montana agrees that TMDL implementation is an important and 
necessary component of a successful water quality restoration program. 
In fact, Montana has routinely submitted implementation plans to EPA in 
support of nonpoint source TMDLs. There is an important distinction, 
however, between a State's voluntary submittal of a plan in support of 
a TMDL and a requirement that a State submit a detailed plan subject to 
EPA's review and approval. The consequences of establishing regulatory 
requirements governing a State's submission of an implementation plan 
rather than a voluntary submittal are fairly obvious. If EPA adopts a 
regulatory approach to the State's submission of implementation plans, 
the perception (or reality) will be that the approved implementation 
plan will have legal effect. In that event, a State's failure to ensure 
strict compliance with the details of an approved implementation plan 
will invite lawsuits challenging the State and EPA's failure to 
strictly enforce the terms of the plan. If EPA wishes to encourage 
States to develop implementation plans in support of TMDLs, it should 
establish nonbinding guidance that may be used by the States rather 
than embark on a regulatory approach that has no support under the CWA.
    EPA's suggestion that it has authority to impose an implementation 
requirement because Congress neglected to do so is contrary to the 
CWA's separate and distinct treatment of point and nonpoint sources. 
Contrary to EPA's contention, Congress has addressed the issue of 
developing and implementing control strategies for nonpoint sources by 
placing sole responsibility over nonpoint sources with the States under 
Section 101(b), Section 319 and Section 208 of the CWA. In regard to 
point sources, there is simply no need for ``implementation plans,'' 
since those sources implement TMDLs by achieving the required waste 
load allocations imposed in their NODES permits. The proposal to 
subject a State's implementation plans to EPA's approval is simply an 
attempt to vest EPA with ``veto'' power over the State's plans or 
programs to control nonpoint sources via the TMDL review process.
    EPA's proposal is contrary to the long-standing practice of many 
States that use a voluntary, incentive-based approach to address 
nonpoint sources. This voluntary approach has been successful in 
Montana and has been adopted into Montana's Water Quality Act as a 
means of addressing nonpoint sources during TMDL development and 
implementation. EPA's proposed emphasis on ``requiring'' Federal 
approval of a plan that establishes drop-dead timelines, milestones, 
reasonable assurance, and a recitation of the State's regulatory 
controls over nonpoint sources would defeat the voluntary approach that 
most States rely upon.
    Montana further questions EPA's ability to develop an 
implementation plan within 30 days after it disapproves a TMDL. It is 
unlikely that EPA will have the resources to develop a plan for 
nonpoint sources that includes ``reasonable assurance'' that the TMDL 
will be developed. More importantly, a plan developed within 30 days 
would not allow for sufficient public comment or be supported by the 
individuals or entities responsible for implementing the TMDL.
    Although Montana currently includes many of EPA's proposed elements 
for implementation plans into the State's plans for nonpoint TMDLs, 
Montana does not believe that the proposed implementation plan elements 
discussed below are necessary or warranted for effective TMDL 
development.

Reciting legal authorities
    Generally, listing legal authorities is not necessary when 
promoting community-based partnerships. Watershed project participants 
for nonpoint TMDLs are interested in improving water quality for their 
own use, as well as for the benefit of the community and local economy. 
Since these groups are being asked to develop watershed plans 
voluntarily, it makes no sense to list the State's authority to enforce 
water quality standards, which may be viewed by project participants as 
an implied threat of an enforcement action. A listing of this nature 
serves no purpose. and would likely be counter-productive.

Developing monitoring milestones and re-evaluating plans
    Establishing specific timeframes within which water quality 
standards will be achieved is not relevant in practical terms and not 
realistic in terms of establishing achievable milestones for nonpoint 
sources. Most water quality improvement projects for nonpoint sources, 
especially for agriculture lands in Montana, balance the need to 
achieve immediate water quality improvements against the need to 
implement projects that are practical, supported by the community, and 
based upon resource considerations. For these reasons, Montana 
frequently takes an adaptive management approach that develops best 
management practices (BMPs) for specific nonpoint sources and then uses 
monitoring as a feedback mechanism to adjust management measures as 
needed. Although water quality models may make it possible to estimate 
water quality response prior to implementation, use of an iterative 
management approach allows water improvements to proceed while the 
effectiveness of BMPs is being evaluated. By contrast, modeling or 
predicting the effectiveness of a nonpoint source project takes time 
and resources and ultimately does not provide a reliable method of 
establishing specific timeframes for water quality improvements.
    It has been Montana's experience that evaluations conducted after 
an initial period of implementing nonpoint source projects provide a 
better framework for determining improvements achieved by the project. 
Persons with technical expertise within local watershed groups, such as 
State and Federal specialists, are important in implementing successful 
watershed projects in Montana. They advise the groups as to whether 
monitoring results show the projects are being effective. Their onsite 
evaluations provide ``best professional judgments'' which watershed 
groups rely upon to modify or improve projects. Since projects are 
routinely evaluated on the basis of monitoring data and analysis, a 
reevaluation plan and monitoring milestones are not necessary to 
achieve successful TMDL implementation in Montana. The proposed 
requirements focus too much attention on predictive planning and, in 
Montana's experience, this emphasis would reduce the time available for 
local groups to actually implement and monitor water quality 
improvement projects.

Reasonable assurance
    Montana supports the concept of providing reasonable assurance that 
a TMDL will be implemented. It has been Montana's experience that 
``reasonable assurance'' is best achieved through the State's efforts 
at providing the technical, educational, and financial assistance 
necessary to ensure the successful implementation of a TMDL. For 
nonpoint source TMDLs, Montana typically develops a plan that 
identifies specific tasks, provides an estimated schedule for 
completing target goals, identifies the project participants, 
identifies initial funding sources, identifies monitoring requirements, 
and is supported by a contract whenever the project is funded by 
Sec. 319. In at least one instance, Montana has also provided 
``reasonable assurance'' for a point source TMDL by developing a 
cooperative agreement for voluntary reductions of nutrients in the 
Clark Fork of the Columbia River. Although Montana supports the concept 
and, in fact, currently provides ``reasonable assurance'' for TMDL 
implementation within the State, Montana objects to EPA's proposal to 
require approval of a State's methods for providing ``reasonable 
assurance'' for nonpoint source TMDLs. This is particularly true in 
relation to EPA's statement that it may require the States to adopt a 
regulatory approach to achieving ``reasonable assurance,'' if a State's 
voluntary approach is ineffective. EPA has no authority to require 
regulatory controls over nonpoint sources and should not consider a 
proposal that coerces States into abandoning their voluntary programs. 
EPA's suggestion that it may veto NPDES permits, redirect Sec. 319 
funding, or designate certain silvicultural or animal feeding 
operations as point sources in the event the States do not provide 
adequate ``reasonable assurance' is indicative of the coercive approach 
EPA is proposing.
    EPA's proposal would do little to ensure that TMDLs for nonpoint 
sources are actually implemented. Instead, the proposal would divert 
State resources away from education and technical assistance for 
nonpoint sources to engaging in a paper exercise of predicting precise 
timeframes, schedules and funding, even though predicting those factors 
may not be feasible during the initiation of a project. For example, 
requiring States to identify adequate funding at the time a TMDL is 
submitted is both unrealistic and counterproductive. In many cases, 
adequate funding for nonpoint source TMDLs is not identified until a 
project is 2 or 3 years underway. It has been Montana's experience that 
funding needs rarely are fully known when goals for restoring streams 
impaired by nonpoint sources are initially established. Requiring the 
identification of funding prior to submitting a TMDL may discourage 
States from submitting TMDL projects and defeats efforts to restore 
impaired streams in a timely fashion. The same objection can be made to 
the requirement that States identify specific delivery mechanisms such 
as contracts, local ordinances, and cost-share agreements for nonpoint 
source TMDLs. Although Sec. 319 source projects will likely be 
supported by a contract, there are other nonpoint source projects in 
Montana that will not. EPA's proposal to adopt a requirement for the 
identification of funding and a specific delivery mechanism for every 
nonpoint source TMDL would invite lawsuits from groups that do not 
believe a State, such as Montana, has provided adequate assurance that 
the TMDL will be implemented. EPA should not adopt binding regulations 
governing a State's ability to provide ``reasonable assurance,'' but 
rather should provide the States with guidance that will assist in the 
effective implementation of TMDLs.

Endangered Species
    Montana supports the concept of addressing federally listed 
threatened or endangered species during the TMDL process. The State is 
concerned, however, with EPA's proposal to require States to engage in 
the rigorous and time consuming consultation process prescribed under 
Section 7 of the Endangered Species Act (ESA). Under EPA's proposal, 
States will now be required to ensure that their TMDLs will not likely 
jeopardize the continued existence of threatened and endangered species 
or destroy their critical habitat. Although Section 7 was enacted to 
ensure that no Federal activity would contribute to the extinction of 
an endangered species, EPA's rule proposal would subject the States' 
water quality restoration projects to the Federal consultation process. 
The time and resources generally required to conclude consultation 
under Section 7 would severely impact the States' ability to develop 
TMDLs in a timely manner. Moreover, since TMDLs are designed to restore 
impaired waters, the State questions why a requirement ensuring TMDLs 
do not jeopardize a listed species is necessary. By adopting this 
proposal, States may be challenged by individuals who do not believe 
that a particular TMDL goes far enough to restore listed species or 
their habitat. EPA should not go forward with its proposal to require a 
``no jeopardy'' finding as a required TMDL element. Instead, EPA should 
adopt a rule that simply requires States to consider native or 
endangered species in their development of TMDLs and to informally 
involve the U.S. Fish & Wildlife Service during the TMDL process. This 
approach is consistent with Montana's process of including the 
protection of native fish in its criteria for ranking TMDLs as high 
priority and informally consulting with the U.S. Fish & Wildlife 
Service during its development of Section 303(d) Lists and TMDLs.

                        HOW TMDLS ARE EXPRESSED

    According to 40 CFR 130.33 and 130.34, TMDLs must contain a load 
reduction that ensures the water body will attain and maintain water 
quality standards, including aquatic or riparian habitat, biological, 
channel, geomorphologic, or other appropriate conditions that represent 
attainment or maintenance of the water quality standard. For example, 
for a stream impaired by sediment deposits, reduced sediment loading is 
required. The proposed regulations appear to require that all TMDLs be 
expressed in terms of loading. Even in Part 130.34, which indicates 
that EPA recognizes the importance of habitat quality, biological 
measures and geomorphology, it appears that a loading must be 
calculated in relation to these water quality characteristics.
    The vast majority of the water quality problems in Montana are due 
to nonpoint sources and many of those problems are due to irrigation 
and riparian management problems that cause habitat degradation. 
Calculation of specific pollutant loads is simply not a suitable method 
to describe these problems, much less lead to practical solutions. 
There are cases where it would be possible to measure and calculate 
sediment loads that would relate to the problem, but this is rarely 
practical due to the expense and technical and practical difficulties 
that would be involved, as follows:
    1. The extremely variable nature of sediment data collected in such 
systems often requires many years of extensive data collection and 
analysis to produce conclusive information.
    2. Spring ice breakup or peak-flow seasons are often the key times 
to collect sediment data, but traveling and working in many parts of 
Montana during that time often is not practical or possible.
    The new TMDL guidance document, ``Draft Guidance for Water Quality-
Based Decisions: The TMDL Process (Second Edition),'' that was 
published in draft with the new regulations, however, allows for TMDLs 
to be expressed in terms other than load. This guidance says on page 3-
10:

          Are surrogate targets appropriate or necessary? In some 
        situations, there are no numeric water quality criteri[a] or 
        quantifiable pollutant load that can be used to define the 
        allowable pollutant load and express the TMDL. In these 
        situations, surrogate targets that have a quantifiable with the 
        water quality criteri[a] or pollutant load can be used to 
        provide numeric indicators of quantifiable measures to express 
        the TMDL. The relationship between a surrogate measure, the 
        water quality standard and the pollutant load should be clearly 
        described.

    The draft regulations should be modified to be consistent with this 
guidance. We believe the statements in the draft guidance are 
absolutely true; in some cases there is no quantifiable load. The bulk 
of the loading of many streams is carried by the streams at times and 
quantities that are nearly impossible to quantify. We believe that 
indicators such as biological health indices and measures of changes in 
eroded or deposited sediments are scientifically justifiable and make 
good economic sense. EPA has promoted rapid bioassessment methods for 
years, understanding their utility for water quality management. It is 
inconceivable to us that EPA would ignore this type of monitoring and 
focus solely on an engineering-based loading calculation for all 
pollutants.
    There are practical ramifications from narrowing the scope of what 
constitutes a load under the proposed rules. We are concerned that the 
proposed rules will significantly reduce our flexibility in how TMDLs 
may be expressed and evaluated. We see the potential for adverse 
consequences such as significantly increased monitoring costs, reduced 
public acceptance of our programs, and a concomitant decrease in 
overall improved water quality due to being forced to direct our 
limited resources more intensively on water quality research. Rather 
than focus on actual loads in ail situations, we support giving the 
States discretion to apply cost-effective and easily understood 
surrogate measures where appropriate. EPA's existing rules allow broad 
use of surrogate measures of loading to address a broad range of 
habitat and other problems common in Montana. In contrast to what we 
foresee under the proposed regulations, our current approach has proven 
to be cost-effective, efficient to implement, and palatable to the 
public.

                          PUBLIC PARTICIPATION

    The State of Montana is strongly committed to public involvement 
and community-based environmental protection and restoration. We 
wholeheartedly support this concept in the proposed regulations and 
have adopted these principles as the cornerstone of our State TMDL 
laws. However, as with our other concerns on the proposed rules, we 
take exception to the proposed specificity with which States would be 
required to engage their citizens in the TMDL process. A close look at 
the Montana approach will demonstrate our sincerity in meeting this 
obligation. We have established a requirement for a 60-day public 
comment period on the 303(d) List. We have also established a 
requirement to involve local watershed advisory groups, conservation 
districts and various other interest groups in development of the draft 
rankings and priorities for TMDL development in Montana. We are 
currently planning 17 public hearings this winter on our year 2000 
303(d) List, including listing methodologies, TMDL priority 
designations, and water body assessment schedules. Public involvement 
is a standard practice for TMDL development in Montana because of our 
strong link to local watershed groups. We have routinely reported on 
the level of public involvement associated with each TMDL submitted to 
EPA for approval. Establishment of a Statewide TMDL Advisory Group, 
representing 14 stakeholder groups, is required by Montana TMDL law. 
The group's formal role is to assist in TMDL priority development and 
to advise the State of Montana government on other TMDL related issues. 
.We have also included a public petition process within our State TMDL 
program whereby any person can request that a water body be added to, 
or deleted from, the 303(d) List by providing the data and information 
necessary to support the requested change. This provision provides an 
extra measure of public involvement in our water quality approach by 
allowing for public input on the 303(d) List at any time, not just 
during the intermittent (currently biennial) reporting cycles. All 
elements of Montana's TMDL public participation program are a result of 
intensive, broad-based discussion and deliberation, followed by 
legislation. Additional EPA specificity dictated through rules 
revisions is unnecessary and undesirable.
    We already routinely incorporate endangered species concerns into 
our watershed management approach, as previously discussed, and 
encourage USFWS and our Department of Fish, Wildlife and Parks and 
Natural Heritage Program to be involved throughout the process of 
watershed management and nonpoint source pollution control. However, it 
is the State of Montana's firm position that TMDL development by the 
State is not a Federal action, and therefore, formal consultation is 
not required under the Endangered Species Act.

                            PETITION PROCESS

    EPA's proposal to create a public petition process, by which any 
person could petition EPA to develop lists and TMDLs in the event a 
State fails to ``substantially'' meet its schedule, is problematic. The 
State views this as another instance in the rules where EPA is 
expanding its limited authority to review lists and TMDLs to now 
include EPA's authority over the States' pace of TMDL development. 
While we agree that States should make every effort to meet their 
schedules for TMDL development, EPA's proposal may unnecessarily 
encourage public requests that EPA intervene in a State's TMDL program. 
States should be allowed to develop ambitious schedules without fear 
that EPA may elect to ``take over'' their TMDL program, if a citizens 
group is not satisfied with the State's progress in TMDL development.
    It is important that EPA's regulations encourage effective public 
participation in State programs, and not establish a system whereby 
citizens are implicitly encouraged to bypass the State. EPA should 
establish specific requirements for these petitions.
    In particular, petitioners should be required to demonstrate that: 
(1) they have requested the State to take action; and (2) the State 
either refused or was unable to take the requested action. Petitioners 
should be required to submit any available information as to why the 
State has declined to take the requested action and the process should 
provide an opportunity for States to respond before EPA determines an 
appropriate response. Our suggested modifications to the petition 
process are necessary to recognize the States' primary role in 
implementing Section 303(d) and to support, rather than hinder, the 
viability of State efforts.

                           TRANSITIONAL TMDLS

    Under its new proposal, EPA would approve any TMDL submitted within 
12 months of the final rule changes if it meets either the pre-
amendment requirements or the post-amendment requirements. The State of 
Montana strongly supports this proposal. TMDL processes are often 
lengthy and more than 100 Montana water quality improvement strategies 
are currently under development. Without a provision in the amended 
rule to address transitional TMDLs, it would be necessary to stop and 
reevaluate or revise pending TMDL development efforts to ensure that 
the new requirements were met. This would be an inefficient use of 
resources and would hinder the progress of Montana's efforts toward 
water quality improvement.

                         ATMOSPHERIC DEPOSITION

    The proposed definition of load allocation would include 
atmospheric deposition as a non-point source of pollutants. The State 
of Montana has voluntarily considered the importance of atmospheric 
deposition in its development of pollution allocations for some lakes. 
However, the technical difficulties and absence of appropriate data and 
analytical models present significant barriers to widespread 
development of water quality improvement strategies that include 
atmospheric deposition. Until such capabilities advance, it would be an 
inefficient use of limited State resources to develop technically weak 
TMDLs for these water bodies. Potential relationships to other Montana 
program goals would also need to be evaluated, for example, the Montana 
Smoke Management Program and Hazard Reduction Law pertaining to logging 
slash disposal (burning). In the interim, we recommend that States 
should be delegated the authority to decide how and when, on a case by 
case basis, State air quality management issues should be coupled with 
the TMDL process.

          LEGAL ISSUES CONCERNING ENDANGERED SPECIES ACT (ESA)

    EPA's new rule proposal would require States to ensure that their 
TMDLs will not likely threaten the continued existence of threatened 
and endangered species or destroy their critical habitat. (See 40 CFR 
Sec. 130.33(d)). In support of this proposal, EPA simply suggests that 
endangered species are an important component of the ecosystem and it 
wishes to ``integrate'' the CWA with the Endangered Species Act (ESA). 
In effect, EPA is proposing that States fulfill the obligations imposed 
under Section 7 of the ESA, which was enacted by Congress to ensure 
that no Federal activity will contribute to the extinction of an 
endangered species. Although Section 7 refers exclusively to ``Federal 
action,'' EPA's rule proposal would subject State actions, such as the 
development and implementation of TMDLs and lists, to the consultation 
requirements that apply only to Federal actions. In addition, States 
will now be required to give ``high priority'' to waters where a 
threatened or endangered species may be present and to submit their 
lists and TMDLs to the U.S. Fish & Wildlife Service and the National 
Marine Fisheries Service (Services). (See 40 CFR Sec. 130.28 and 
130.37). None of these requirements are supported by law and their 
implementation would blur the clear distinction between the State's 
primary authority over TMDL development and EPA's limited role in 
overseeing the States' activities. As a result, the primary authority 
of the States to prioritize their lists and develop TMDLs for the 
purpose of achieving applicable water quality standards will become 
secondary to protecting federally listed species and their habitat. If 
EPA's proposal to address endangered species is adopted, EPA's 
statutory ``oversight'' role under Section 303(d) will be significantly 
expanded to become the driving force behind the development of TMDLs. 
The following comments address each of EPA's rule proposals that 
require States to ensure that endangered species are not jeopardized.
Priority Ranking for endangered species
    Under Section 303(d) of the CWA, States are to prioritize their 
lists of impaired waters ``. . . taking into account the severity of 
the pollution and the uses to be made of such waters.'' Under EPA's 
current guidance, States may expand upon the statutory list to consider 
additional factors in setting priorities. In Montana's view, EPA's 
current approach is appropriate, because the guidance does not compel 
States to ignore the statutory factors in favor of a single factor that 
has never been endorsed by Congress. Under EPA's rule proposal, States 
would be required to give ``high priority'' status to any threatened or 
impaired stream where an endangered species may be present. This 
requirement not only ignores the statutory factors under the CWA, but 
eliminates the States' discretion to consider other ``high priority'' 
factors, such as the importance of a particular water body for 
recreational or aesthetic purposes, the vulnerability of a water body 
as an aquatic habitat, and the State's immediate programmatic needs. 
All of these factors are recognized under EPA's current guidance and 
are consistent with the CWA's directive to establish priorities based 
upon beneficial uses and the severity of pollution. Under the rule 
proposal, States would be compelled to prioritize their waters in favor 
of restoring endangered species to the detriment of restoring severely 
polluted waters. This requirement has no basis under the CWA and 
directly conflicts with the statutory factors enacted by Congress. 
Since the CWA does not require States to consider federally listed 
species during the State's development of TMDLs, EPA should not proceed 
with this proposal until clearly authorized by Congress.
Soliciting comments to ensure the protection of endangered species
    EPA is proposing rules that would establish various requirements 
for public participation (See 40 CFR Sec. 130.37). Among those 
requirements is a provision ``encouraging'' States to establish 
processes with both the Services that will provide for the early 
identification and resolution of threatened and endangered species as 
they relate to lists of impaired or threatened water bodies, priority 
rankings, schedules and TMDLs. Accordingly, the rule would require 
States to submit their draft lists and TMDLs to the Services at the 
time that public comment commences, unless the State requests EPA to do 
the submittal. In order to facilitate early consideration of endangered 
species during the stalest listing and TMDL process, EPA will request 
the Services to provide their comments to both the States and EPA. The 
State then would be required to consider the Services' comments and 
document the basis of its response. Prior to EPA's approval of a list, 
priority ranking, TMDL or schedule, EPA will review the sufficiency 
with which the State ``addressed'' the Services' comments.
    On its face, the rule appears only to require a State to consider 
the comments of the Services without imposition of additional Federal 
requirements to ensure the continued existence of endangered species. 
When read in conjunction with the proposed new rule requiring that 
TMDLs must not be likely to jeopardize endangered species or their 
habitat, it is clear that the consultation requirements applicable to 
``Federal actions'' under Section 7 will now apply to the States. These 
requirements are spelled out in rules adopted by the Services and 
generally would result in intensive data collection, resources, and 
delay.\1\
---------------------------------------------------------------------------
    \1\ EPA estimates that consultation on a State's water quality 
standards takes ``approximately 18 months.'' 64 Fed. Reg. 2742 (Jan. 
15, 1999). In Montana, Section 7 consultation on the State's revised 
water quality standards began in 1994 and has yet to be concluded.
---------------------------------------------------------------------------
    Under EPA's proposal, the Federal agency's responsibility to 
collect the necessary data and to engage in consultation will be 
shifted from EPA to the States. In effect, the rules unconstitutionally 
``commandeer'' the States to implement a Federal program. See New York 
v. U.S., 505 U.S. 144 (1992); Prinz v. U.S., 521 U.S. 898 (1997).
    Although EPA's rule proposal does not elaborate upon the deference 
given the Services' comments on lists and TMDLs, it is clear from the 
rules implementing Section 7 that the Services would have a major role 
in determining whether a TMDL or list may be approved by EPA. If a 
biological opinion is required as a result of the Services' review, EPA 
will have little choice but to require the States to adhere to the 
conditions in the biological opinion. In some instances, the State may 
be unable to follow the conditions of the opinion due to lack of 
regulatory controls over nonpoint sources. Montana urges EPA not to 
adopt these proposals, but rather consider addressing the issue of 
endangered species in guidance.

                    FISCAL IMPACTS OF PROPOSED RULES

    The State of Montana is very concerned that the new TMDL rules 
would result in significant additional costs to States over current 
law. Our Department of Environmental Quality (DEQ) has primary 
responsibility for implementing the provisions of 303(d). Given the 
formidable workloads of DEQ TMDL staff, the new rules would likely 
significantly raise the costs per TMDL, greatly slow the entire process 
and lead to an overall decrease in water quality from present 
conditions. They also would require that additional staff and resources 
to be devoted to the TMDL process and that local water groups, 
technical advisers and consultants be educated on new program 
requirements.
    According to EPA's Water Quality Workload Model, Montana currently 
has minimal resources to run a TMDL program under the rules as they now 
stand. Currently, DEQ has 13.5 FTE (full time employees) committed to 
water quality standards activities, including monitoring, reporting and 
TMDL activities, with a budget of about $1.35 million. EPA's Water 
Quality Workload Model: Draft Module 2, when calibrated to Montana's 
parameters, suggests that 58 FTE and a total budget of about $4,896,000 
would be needed to implement TMDLs on time under the rules as they now 
stand. Despite this discrepancy with EPA's modeled numbers, DEQ staff 
has been highly effective in implementation and in--as gained valuable 
assistance from local watershed groups and other outside groups.
    While the DEQ staff has been effective, the previous paragraph 
demonstrates that they have a challenging task to meet TMDLs on time 
given their current resources. It follows then that the new and more 
complicated rules proposed by EPA would set back the staff and unduly 
slow the TMDL process unless additional resources were obtained. In 
addition, the new rules undo much of the work and fiscal investments 
already put into Montana's current TMDL program. By our most 
conservative estimate, DEQ would need at least twice the current 
resources to comply with the proposed rules in a timely fashion. Our 
best guess is that between 22 and 24 additional FTE over the 13.5 
currently employed would be needed to comply with the new TMDL rules, 
along with several tens of thousand of dollars in new equipment. These 
figures are further explained in the paragraphs that follow.
    Given that an additional FTE in standards activities costs about 
$65,000 a year (including benefits and operating expenses), the 
additional staff would cost an estimated $1,448,000. These figures 
suggest that EPA probably is not correct that the rules would cost less 
than $100 million annually for all the States. This would be less than 
$2 million per State on average in additional costs. It is likely that 
average costs per State will be much greater. Costs for Montana could 
be much higher than the conservative estimate of about. $1.4 million, 
due to uncertainties about the consequences of the new rules. Montana 
is a small State with respect to population and polluting sources. Many 
States' current costs are much greater and the potential cumulative 
increase in costs under the new rules would likely be greater than what 
EPA has estimated.
    The following four paragraphs explain in more detail the estimated 
22-24 extra FTE and extra equipment needed under the new rules. If all 
TMDLs in Montana were required to focus mainly on specific pollutants 
as Stated in the new rules, it is estimated that at least 4 additional 
FTE would be needed for modeling, monitoring and sampling. These new 
staff would also need several thousand dollars in new sampling 
equipment, as a conservative estimate. The additional FTE would be 
needed in part to continually monitor and model pollutant loads for 
certain water bodies for which current law applies more effective and 
less expensive surrogate measures to achieve desired levels of water 
quality. The more comprehensive listing for impaired waters in the new 
rules would require additional labor hours in both the office and field 
including additional travel to selected water bodies and increased 
monitoring, sampling, data collection and administrative work. We 
estimate that about 0.25 additional FTE would be needed just to 
administer the more complicated listing method EPA has proposed.
    Under the new rules, States would assign a ``high'' priority to 
certain impaired waters identified by EPA and would complete these 
TMDLs within 5 years. Montana already has a system of prioritization 
that considers but does not necessarily give highest priority to 
drinking water or waters harboring endangered species. DEQ estimates 
that a full 60-70 percent of Montana's current TMDL list would have to 
be listed as high priority (just from the drinking water and endangered 
species 
concerns) and thus would require completion within 5 years. The result 
would be a significant increase in workload within a relatively short 
time period, requiring additional FTE and resources. Conservative 
estimates suggest that 18 additional employees would be needed to 
complete high priority TMDLs within 5 years. This number constitutes 
three times the current personnel (six FTE total), four dedicated to 
regulatory monitoring, one to TMDL methods, and one to involvement with 
the 303(d) List.
    An expedited TMDL process (due to having to complete high priority 
TMDLs in 5 years) would impose significant additional costs upon DEQ. 
For one, we would have to quickly hire new FTE and hastily train them. 
We might also be forced to neglect other parts of TMDL implementation, 
or implementation in areas of the State with no high priority waters. 
Such costs are difficult to quantify.
    Other additional costs from the new rules include meeting the 10 
specific elements and providing ``reasonable assurance'' that goals are 
met. The most conservative estimate would put the costs of meeting 
these elements at $5,000 (for additional monitoring equipment, modeling 
software and computers) with any additional labor hours included in the 
additional 18 FTE mentioned above. This proposal also would allow EPA 
to demand or revise a TMDL if petitioned to do so. This could lead to 
occasional litigation and additional costs to the State of Montana. 
These costs have not been included in this analysis. The costs of 
requiring a public review of TMDLs every 2 years are estimated to be 1 
FTE the first year and 0.5 FTE in subsequent years.
    In conclusion, it is apparent despite our conservative calculations 
that the proposed rule changes would have a significant fiscal impact 
on the State of Montana, and one EPA has not accurately quantified or 
addressed. The impacts could be sufficient to upset our entire TMDL 
process and program. Few aspects of the proposed rules can be seriously 
considered in the absence of a more detailed fiscal analysis and a 
Federal funding package.
                       Department of Environmental Quality,
                                      Helena, MT, January 20, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.

Attn: Water Docket (W-99-04)

Re: Proposed Revisions to the National Pollutant Discharge Elimination 
System (NPDES) Program and the Federal Antidegradation Policy

    Dear Ms. Browner: I am writing on behalf of the State of Montana 
concerning the U.S. Environmental Protection Agency's (EPA) proposed 
revisions to the NPDES rules and Federal antidegradation requirements, 
40 CFR Parts 122, 123, 124, and 131, published in the Federal Register 
on August 23, 1999. The enclosed comments are the combined effort of 
our State natural resource agencies who have worked together to analyze 
the rules and to develop consensus continents. The State appreciates 
the opportunity to comment on the proposed rules and supports EPA's 
efforts to address the Clean Water Act (CWA) goals of restoring and 
improving the nation's waters.
    Montana wishes to emphasize that it shares with EPA the common goal 
of protecting and improving water quality and we remain dedicated to 
meeting that objective. Although we share a common goal, Montana does 
not agree with EPA's approach to achieving water quality improvements 
by imposing Federal regulatory controls over nonpoint sources. Montana 
continues to believe that nonpoint source pollution is best controlled 
at the State level through programs based on land management practices 
and land use decisions. We feel that EPA's emphasis on obtaining 
Federal regulatory control over nonpoint sources is not warranted and 
may be counterproductive to achieving cleaner water. Montana's program 
of best management practices for forestry activities has continued to 
improve over the years and the program has demonstrated its 
effectiveness in protecting water quality through State-sponsored 
audits. From the State's perspective, adding a Federal permit 
requirement to address nonpoint source forestry activities is 
duplicative of State programs and adds little in terms of actual water 
quality improvement.
    In general, we think the existing CWA program to restore impaired 
waters through the development of TMDLs is adequate and that EPA's 
proposal to require ``reasonable progress'' in restoring impaired 
waters to TMDL development is not justified by the additional costs. 
Implementation of EPA's offset proposal would divert limited State 
resources away from the core activities of developing and implementing 
TMDLs, which produce the most benefit in terms of restoring water 
quality.
    Attached are Montana's detailed comments on the proposed rule 
revisions. We look forward to working with EPA to ensure that our 
mutual objectives in protecting and restoring waters are reasonably and 
effectively achieved.
            Sincerely,
                                          Mark A. Simonich,
                                                          Director.
                                 ______
                                 
Detailed Comments by the State of Montana on Proposed Revisions to the 
  National Pollutant Discharge Elimination System (NPDES) Program and 
 Federal Antidegradation Policy--Water Quality Planning and Management 
                   Regulation, 40 CFR 122-124 and 131

                              INTRODUCTION

    The State of Montana has long supported the goals of the Clean 
Water Act (CWA) to restore and maintain the quality of the nation's 
waters. Montana also recognizes the need to continually evaluate and, 
if necessary, improve the methods by which States address nonpoint 
sources. Although EPA's rule proposal attempts to address the issue of 
``progress'' in improving water quality, we cannot identify any 
additional realistic benefits that would further the CWA's goals and 
that are justified by the added regulatory burdens and costs. Instead, 
the new rules add unnecessary complexity to the States permitting 
process.
    The State is concerned with EPA's attempt to redefine activities 
traditionally considered as nonpoint sources as point sources and 
require permitting and regulatory controls for those sources. The State 
believes that the move to redefine nonpoint sources might negate much 
of the cooperative approach that the Montana forestry best management 
practice (BMP) process has engendered and cause unnecessary disruptions 
to the State's process for managing nonpoint sources through reasonable 
and effective land management practices. The State is also concerned 
that the imposition of offsets for new or increased point sources will 
overburden State resources in administering an already cumbersome 
permitting process and unfairly single out certain point sources to 
demonstrate net progress in restoring impaired waters prior to the 
development of a TMDL.
    In general, Montana believes that the existing regulatory framework 
implementing the CWA's NPDES program and the Federal antidegradation 
policy is adequate. The State also disagrees with EPA's efforts to 
address the issue of nonpoint sources and lack of TMDL progress by 
adopting rules that are not supported by the CWA. For these reasons, 
Montana objects to EPA's proposals to modify the existing requirements 
and urges EPA to address these issues, if necessary, in guidance.

      ANTIDEGRADATION CHANGES--OFFSETS FOR NEW OR EXPANDED SOURCES

    EPA is proposing changes to its antidegradation rules to require 
any new or existing discharger undergoing significant expansion in an 
impaired water body to obtain a 1.5:1 offset. The purpose of the rule 
is to promote ``reasonable progress'' in restoring impaired waters 
prior to the development of a TMDL. The choice of a 1.5:1 offset ratio 
appears to be entirely arbitrary and is also a serious deterrence. This 
proposal is not supported by the CWA and clearly goes beyond what 
Congress has expressly sanctioned as the appropriate method for States 
to restore impaired waters. The TMDL process established under Section 
303(d) of the CWA requires States to identify pollution sources in an 
impaired water and develop wasteload and load allocations for point and 
nonpoint sources, respectively, that will bring the water body into 
compliance with water quality standards. A rule requiring restoration 
limits for a particular discharger prior to TMDL development may 
needlessly interfere with the TMDL process which requires a 
comprehensive and equitable pollution allocation process. We also 
believe that, regardless of the status of a discharge as ``new'' or 
``expanded'', the imposition of offsets prior to TMDL development may 
be disruptive for a discharger whose permit limits may require changes 
after a TMDL has been developed by the State.
    While we appreciate EPA's concerns regarding the slow pace of TMDL 
development nationally, the State of Montana and other States have 
taken effective measures to strengthen their programs. We should not be 
penalized by the imposition of the proposed additional and unnecessary 
NPDES requirements that significantly impact our State permitting 
program. States should be allowed to focus their efforts and resources 
on addressing impaired waters under the TMDL process, not through 
additional permit requirements. The limited environmental gain from 
imposing offset requirements on a single point source within an 
impaired watershed does not justify the adoption of these requirements.
    Although EPA admits there is no authority in the CWA to support its 
proposal, it relies on the antidegradation policy as a vehicle to 
impose the offset requirements. EPA's proposal goes beyond the primary 
objective of the Federal antidegradation policy, the stated purpose of 
which has been to protect and maintain existing water quality. While 
the State does not disagree with the historical concept of EPA's 
antidegradation policy as a means of maintaining existing water 
quality, we do object to a proposal that would require States to 
restore impaired waters outside of the TMDL process. EPA's proposal 
needlessly intrudes upon the States' primary responsibility to ensure 
compliance with their water quality standards through State-issued 
permits and State programs for nonpoint sources prior to TMDL 
development. The heavy-handed approach of EPA's proposed rule would 
require States to divert their limited resources away from the CWA's 
goals of developing TMDLs and toward administration of an increasingly 
complex permitting program. For example, if an offset is obtained from 
a nonpoint source, State resources would be diverted to ensure that a 
net improvement from a particular landowner is achieved. Rather than 
impose ``regulatory'' requirements over a single landowner, States 
should be given the flexibility to use their resources in a manner more 
suited to controlling land practices within the entire watershed. This 
proposal is simply another attempt by EPA to encourage States to 
``regulate'' nonpoint sources through the imposition of offset 
requirements that ultimately result in enforceable load reductions for 
nonpoint sources.
    Establishing an administrative process to establish, track and 
enforce offsets would: (1) require significant new resources for 
permitting programs, (2) retard the permitting process and contribute 
to an increased permit backlog, and (3) create burdensome regulatory 
requirements for nonpoint sources that are best managed through 
improved land practices. In Montana, about 90 percent of the streams 
and 80 percent of the lakes identified on our Section 303(d) list are 
impaired due to a variety of nonpoint pollution problems The process of 
establishing; and monitoring offset requirements for impaired water 
bodies with multiple nonpoint sources would be difficult, if not 
impossible. to effectively administer and enforce. The proposed 
regulation may force the State into situations where it is unable to 
effectively administer or enforce its own permit requirements.
    Finally, EPA's proposal might, in certain circumstances, hinder 
water quality improvement because the proposal focuses solely on 
reducing the load of the pollutant, rather than the concentration of 
the pollutant. This approach is not necessarily consistent with TMDLs, 
where an objective may be to reduce the in-stream concentration of a 
particular pollutant. An example is a stream impaired due to high 
metals levels. If a facility proposed to discharge effluent containing 
lower metals concentrations than the receiving stream, the net effect 
would be to lower the in-stream metals concentrations. Under EPA's 
proposal, the discharger would be required to offset the load of metals 
us the discharge, regardless of the effect of that discharge on the 
beneficial uses that have been determined to be impaired. If EPA goes 
forward with this proposal, offsets should be applied in two 
situations: (1) where the load, and not the concentration, is perceived 
to be the problem (such as phosphorus accumulations in a lake), or (2) 
where a discharge is proposed in pollutant concentrations greater than 
those of the receiving water.

            POINT SOURCE DESIGNATION FOR CERTAIN OPERATIONS

    EPA is proposing amendments that will allow it to designate certain 
animal and aquatic feeding operations and silviculture activities as 
point sources. EPA is proposing to make this designation in instances 
where EPA has promulgated a TMDL for the State. According to EPA, the 
designation would provide EPA with ``reasonable assurance'' that the 
Federal TMDL will be implemented by requiring designated sources to 
obtain an NPDES permit. In order to designate timber harvest activities 
as point sources, EPA is also proposing to remove an exemption that has 
been in effect for more than two decades. EPA's proposal to designate 
what could be all silvicultural activities as point sources ignores the 
directive of Congress to address nonpoint sources through State-
administered programs under Sec. 319 and Sec. 208 of the CWA. Further, 
since EPA is proposing to designate point sources based upon ``other'' 
considerations that are not typically relied upon by the States, EPA's 
approach would leave many operators subject to what they perceive as an 
arbitrary designation process.
    Montana is concerned with EPA's attempt to change the regulatory 
setting of more than two decades of consistent and intentional 
Congressional recognition of silvicultural activities as nonpoint 
sources that are not subject to NPDES permit requirements. The 
character of most silviculture activities as nonpoint sources, and the 
policy determination to manage these activities through planning and 
management techniques rather than permits, is firmly rooted in the CWA 
and its legislative history. The control of nonpoint sources under 
Sec. 319 specifically leaves the development of control programs, 
including the consideration of a regulatory approach, with the States. 
This means that Congress has concluded that additional processes, such 
as Federal permits to control nonpoint sources, are duplicative and not 
needed to achieve the goals of the CWA. Since all States have either 
voluntary or regulatory programs for nonpoint source pollution, EPA's 
proposal seems to ignore the congressional intent that the choice of 
nonpoint source control approaches is left to the States. By imposing 
NPDES permits on nonpoint sources, EPA's proposal will effectively 
preempt State programs that use a voluntary approach to control these 
activities.
    If adopted, EPA's proposal will disrupt the functions that are 
split among State agencies. In many cases, State programs are built 
around the differences between point and nonpoint source discharges and 
the responsibilities for administering regulatory programs and land 
management programs are vested in different agencies Subjecting 
traditional nonpoint source activities to permitting requirements or 
Section 401 certification will only add duplication of effort by these 
agencies, particularly in States with mandatory or well-developed best 
management practices.
    EPA's proposal ignores the success of Montana's nonpoint source 
pollution control program, which relies upon innovative and effective 
land management practices that have demonstrated significant 
improvements in water quality without regulatory controls. In Montana, 
a combination of voluntary BMPs and statutory requirements for 
``streamside management zones'' provides protection to Montana water 
quality during timber harvest operations. The BMPs were developed over 
the last decade through a cooperative effort between Montana agencies 
and forest industries. As a result of this cooperative effort, the 
State's forest industries voluntarily implement these BMPs as a matter 
of properly doing business.
    During the past 10 years, Montana has documented the success of its 
voluntary nonpoint source program by conducting biannual audits to 
monitor the implementation and effectiveness of BMPs in protecting 
water quality. Formal audit reports have been issued every 2 years for 
the past 8 years. These audits demonstrate steady improvement in both 
the application and the effectiveness of forestry BMPs in protecting 
water quality. For example, the percentage of forestry practices that 
meet or surpass BMP requirements has increased from 78 percent in 1990 
to 94 percent in 1998. From the State's perspective, the success of the 
voluntary program results from educational programs and continuing 
cooperation bestrewn the State and the forest industry. EPA has 
recognized the success of Montana's voluntary BMP program and the 
State's program received EPA's nonpoint pollution prevention award. The 
entire voluntary program has been at a minimum expense to the State of 
Montana. Based upon Montana's and other States' experience, EPA should 
recognize that voluntary programs are often more effective and less 
costly than adopting a regulatory approach to control forestry 
activities. States should be allowed to continue with their efforts to 
improve their voluntary programs without needless interference or 
additional regulatory controls.
    EPA's proposed rules would have a profound affect on TMDL 
implementation in Montana and would disrupt our successful efforts at 
implementing voluntary BMPs. The new rules, if implemented, would 
negate much of the cooperative approach that the forestry BMP process 
has engendered. Designation of certain silviculture activities as point 
sources that would require an NPDES storm water permit would provide 
little additional benefit toward achieving compliance with water 
quality standards. The storm water permits issued by the State will 
ultimately rely on the BMPs that have already been developed by the 
State and which are currently implemented voluntarily. A requirement 
for a Federal NPDES permit is unnecessary and duplicative of State 
efforts.
    The only possible benefit resulting from designating a silviculture 
activity as a point source would be the threat of enforcement. A 
regulatory threat over timber activities in impaired watersheds may 
provide a strong disincentive for road maintenance and improvement 
projects, revegetation projects, and other activities that are now 
routinely done by forest landowners as part of their commitment to BMP 
implementation. The reluctance to undertake activities that ultimately 
reduce nonpoint source runoff would be exactly the opposite result of 
the CWA's objective to restore and improve the nation's waters. The 
State opposes EPA's proposal because it would impose a Federal ``top 
down'' approach that may impede the State efforts at achieving actual 
water quality improvements through a demonstrably effective voluntary 
approach. Moreover, EPA's proposal to designate point sources using 
``other'' criteria that are typically not used by the States will leave 
EPA's designation open to challenges resulting from arbitrary and 
capricious decisions.

                   ECONOMIC IMPACT OF PROPOSED RULES

    We feel that the resulting costs of the new rules to small 
entities, point source dischargers and to States would greatly outweigh 
the benefits and that, in this regard, the new rules are not 
economically justifiable.
Offsets
    EPA claims that because the proposed offset provisions in the rules 
would require a new or increased discharger to obtain offsets only from 
large entities, there would be no impact on small entities. This seems 
plausible. There would, however, be potential costs to State agencies 
from enforcing offsets, sewing up monitoring programs and guidelines 
for offsets to be included in permits, process and issue new permits, 
and modify any existing permits involved in offset contracts. There 
also would be State-incurred costs in determining and enforcing 
``reasonable further progress'' toward attainment of water quality 
standards. Because Montana's permitting system is funded entirely by 
fees collected from permit holders, any added costs must be passed 
along to all the permittees in the system. Most importantly, the 
benefits resulting from the new rules are uncertain, unclear and at 
best do not seem to justify the extra program costs.
    Offsets could prove to be a major bureaucratic burden to States 
while providing little or no gain in water quality improvement. For 
one, dischargers would have to locate and bargain with each other to 
establish offsets. This would require some assistance by States and 
would require additional resources. Offsets would also impose 
transaction costs on the dischargers. Further, the cost of establishing 
and administering offsets would depend upon the particular State and 
the geographical distribution of large dischargers. Facilitating 
pollution offsets may be more difficult in a State such as Montana 
where a given water body is affected by only a few discharges.
    EPA's proposed requirement that all conditions necessary to ensure 
the load reduction must be included in NPDES permits would require 
reworking and restructuring permits to include all relevant offset 
information. Information within the permit would have to specify all 
details of the offset including the stipulations between discharging 
parties and the effects upon the water body. This would slow the 
permitting process and would cause more work for those involved with 
water quality enforcement. Almost certainly, additional staff end 
funding would be needed to prevent an increase in the backlog of cases 
if this requirement were made law.
    Additional costs would result from EPA's suggested point and non-
point source trading option. This would be difficult to accomplish in 
practice and raises a number of questions. If States failed to 
quantitatively confirm non-point loading reductions that were needed to 
offset point sources, they might be liable for costly citizen lawsuits 
or EPA intervention. Given that Montana's water quality problems are 
largely due to nonpoint sources, isolating load reductions from 
nonpoint source controls through monitoring can be difficult and 
expensive. Again, it seems that the costs of administering these 
complex regulations outweigh the small gains in net progress.
Designating Certain Activities as Point Sources
    EPA maintains that the effect of eliminating the current 
categorical silvicultural exclusion would be limited. EPA says that 
this provision would not impose significant new costs on a substantial 
number of small entities and that it can predict with a high degree of 
confidence that it would need to exercise the proposed new designation 
authority on only a few occasions. We disagree with these assertions.
    Many small timber operations in Montana not subject to permitting 
under current law would be brought into the process under the new 
rules. In high priority TMDL areas, timber companies receiving permits 
under this proposal would immediately begin to develop a pollution 
prevention plan, which may involve modeling future allowable harvests. 
The main costs to newly regulated timber companies would come from 
preparing and putting in place a detailed pollution prevention plan, 
paying permit fees and monitoring the effectiveness of their best 
management practices. The preparation of a pollution prevention plan 
can be a complex and overwhelming task, even for a relatively minor 
timber project. Clearly this is beyond the capabilities of many small 
operators and could easily cripple their business activities.
    Animal Feeding Operations (AFO) and Aquatic Animal Production 
Facilities (AAPF) that are designated as point sources to be permitted 
under the new rules would incur costs associated with a pollution 
control plan and consultation with either the State or a consultant for 
technical intonation. Further, permitting could greatly affect 
decisions that AFO and AAPF managers make, such as the need to apply 
for loans or purchase new equipment. As a result, production within 
these facilities could be delayed or greatly modified. Many capital 
expenditures for both production and pollution control take years to 
resolve and permits may make some of those investments obsolete, 
inefficient or very uncertain. Permits, when they do become effective 
may also alter production patterns for these types of operations. Such 
changes could result in less product being available when prices and 
markets are at their peak. Uncertainty as to whether operation would be 
permitted may result in additional company expenditures on research, 
equipment, and consultations with the State. While we do not 
necessarily disagree with permitting such operations, it is clear that 
EPA is wrong in saying that permitting would carry no substantial 
costs.
EPA's Assertions as to the Effects of the Rules on States
    According to EPA, the total costs to State, local and tribal 
governments as a result of the new rules would not exceed $96 million 
in any 1 year, with a majority of these costs borne by State 
government. While the total costs to States may be less than $100 
million annually, the State of Montana asserts that EPA's total cost 
projections of less than $1 million is not correct. Further, we 
question why States should incur any additional costs considering the 
limited environmental benefits.
    EPA indicates that other costs would be borne by the private 
sector. Because of the way Montana has set up their discharge 
permitting program, all additional costs would be passed along to the 
permit holders. However, we again question why any additional costs can 
be justified if water quality benefits accruing from the proposal would 
be limited or non-existent.
                                 ______
                                 
    Statement of J. Charles Fox, Assistant Administrator for Water, 
                    Environmental Protection Agency

                              INTRODUCTION

    Good afternoon Mr. Chairman and members of the subcommittee. I am 
Chuck Fox, Assistant Administrator for Water at the U.S. Environmental 
Protection Agency (EPA). I look forward to talking with you this 
afternoon about the Nation's clean water program and, more 
specifically, about our efforts to identify polluted waters around the 
country and restore their health.
    Over the past several years, EPA has worked closely with other 
Federal agencies and States to coordinate programs designed to protect 
natural resources and water quality. For example, EPA and USDA led the 
effort to develop the Clean Water Action Plan announced by President 
Clinton just over 2 years ago. We continue to work together to oversee 
implementation of the Action Plan and to coordinate key projects, such 
as our work to improve management of excess nutrients in waste from 
animal feeding operations.
    I am pleased that the President has proposed to substantially 
expand fiscal year 2001 funding for grants to States for water 
pollution control. The President's Budget proposes increased funding of 
$45 million for grants to States to identify and address the remaining 
polluted waters around the country. This funding, when matched by 
States will result in an increase of $75 million annually for 
development of ``Total Maximum Daily Loads'' or ``TMDLs.'' As my 
testimony will explain, TMDLs are critical to attaining our water 
quality goals.
    The fiscal year 2001 budget also includes an additional $50 million 
in funding for Grants to States to implement projects to reduce 
pollution from diffuse or ``nonpoint sources,'' bringing the total 
value of these grants to $250 million, a 150 percent increase in 3 
years.
    An additional $50 million for grants to support efforts to restore 
water quality in the existing ``areas of concern'' in the Great Lakes 
is also proposed in the budget.
    Finally, the President's recent proposal to provide an increase of 
$1.3 billion in fiscal year 2001 for diverse USDA conservation programs 
provides an opportunity to further strengthen coordination between USDA 
and EPA to protect natural resources and water quality.
    This new funding for clean water programs, when approved by the 
Congress, will provide States and others with significantly enhanced 
resources to clean-up water pollution problems around the country.
    In my testimony today, I want to describe the work EPA is doing to 
carry the clean water program forward in this new century, giving 
special attention to our recent proposals to strengthen regulations 
guiding our efforts to identify and restore polluted waters under the 
Clean Water Act.
        clean water for the future--the clean water action plan
    Twenty-eight 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 Clean Water Act 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.
    Despite this tremendous progress in reducing water pollution, 
almost 40 percent of the Nation's waters assessed by States still do 
not meet water quality goals. The States report that pollution from 
factories and sewage treatment plants has been reduced but remains a 
concern in many areas. Soil erosion and wetland losses impair or 
threaten the health of many aquatic systems. Pollution from a wide 
range of sources (e.g. storm water from city streets, agricultural 
lands, forestry operations, and others) degrade water resources. Fish 
in many waters contain unacceptable levels of mercury and other toxic 
contaminants. Beaches are too often closed due to poor water quality.
    Several years ago, after taking a hard look at the serious water 
pollution problems around the country, the Administration concluded 
that current implementation of the existing programs was not fully 
addressing serious water pollution threats to public health, living 
resources, and the Nation's waters.
    In response to this concern, President Clinton and Vice President 
Gore announced, in February 1998, an interagency effort to enhance 
existing clean water programs and speed the restoration of the Nation's 
waterways. The Clean Water Action Plan was the product of a cooperative 
effort by USDA, EPA, the Department of the Interior, the National 
Oceanic and Atmospheric Administration, the Army Corps of Engineers and 
others. It describes over 100 actions--based on existing statutory 
authority--that these agencies and others will undertake 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 an 
improved collaborative effort by Federal, State, Tribal, and local 
governments, the public, and the private sector to restore and sustain 
the health of over 2,000 watersheds in the country. The watershed 
approach provides a framework for water quality management and is a key 
to setting priorities and taking action to clean up rivers, lakes, and 
coastal waters.
     Strong Federal and State Standards.--The Action Plan 
describes how Federal, State, and Tribal agencies may 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.--Much of the land in the 
Nation's watersheds is crop land, pasture, rangeland, or forests, and 
much 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 encourages 
Federal natural resource agencies, including the Department of 
Agriculture, 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 encourages 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.
    USDA, EPA and others are making good progress in implementing the 
over 100 specific actions described in the Clean Water Action Plan. 
Congress has provided vital support to this work by appropriating 
critical funding, including doubling EPA's State grants for reducing 
nonpoint pollution to about $200 million.
    A key accomplishment promoted by the Action Plan is completion of 
State assessments of watershed health and initiation of over 300 
Watershed Restoration Action Strategies to restore polluted waters on a 
watershed basis. These Action Strategies are a tremendous tool for 
drawing together the diverse authorities and resources of local, State, 
and Federal agencies to restore watershed health.
    Other accomplishments include a new BEACH Action Plan, a response 
plan for pollution threats to coastal waters, new regulations to 
control discharges of stormwater, new efforts to support establishment 
of riparian buffers, and a contaminated sediment strategy. We are also 
supporting efforts to protect water quality and wetlands on a watershed 
basis through ``watershed assistance grants'' and the five State grant 
program.
    The Clean Water Action Plan is a sound blueprint that brings the 
Nation's clean water programs into the new century. I ask, Mr. 
Chairman, that a copy of the first annual report of progress in 
implementing the Clean Water Action Plan be included as part of my 
testimony in the hearing record.

                  RESTORING AMERICA'S POLLUTED WATERS

    The clean water programs that EPA and the States implement--ranging 
from financing assistance for sewage treatment facilities, to permits 
for dischargers, to technical assistance to control pollution from 
nonpoint sources--are all intended to reduce water pollution.
    For many years after passage of the 1972 Clean Water Act, pollution 
problems were so common that any reduction in pollutants made a 
contribution to improving the health of waters. Today, however, some of 
the most obvious water pollution problems have been addressed. To 
restore the health of those waters that remain polluted, we need to 
complement existing programs with a more focused effort to identify 
specific polluted waters and define the specific measures needed to 
restore them to health.
    The authors of the 1972 Clean Water Act envisioned a time when this 
more focused approach to restoring the remaining polluted waters would 
be needed and they created the TMDL program in section 303(d) of the 
Act.
    In my testimony today, I want to discuss the existing TMDL program, 
the story that it tells about the health of our waters, and the 
regulatory revisions that EPA is proposing in order to strengthen the 
existing program.
The Total Maximum Daily Load (TMDL) Program Background
    The TMDL program, as it exists today, has two key phases--
identification of polluted waters and restoration of the health of 
these waters.
    In the identification phase of the program, the States, with EPA 
oversight and approval, usually develop lists of polluted waterbodies--
waters that do not attain the water quality standards adopted by that 
State--every 2 years. States consult with the public in developing 
lists, rank waters on their lists based on the severity of the 
pollution, and set schedules for the development of TMDLs for each 
water body over an 8-13-year period.
    The second part of the program is the development of the actual 
``TMDL,'' which is, in effect, a State's plan to restore the uses of 
the water that the State has determined to be appropriate (e.g. 
swimming). It includes a quantitative assessment of water quality 
problems and the pollutant sources that contribute to these problems. A 
TMDL for an impaired water defines the amount of a pollutant that can 
be introduced into a waterbody so that the waterbody will achieve the 
water quality standards adopted by that State and allocates reductions 
in the pollutant or pollutants among the sources in a watershed. 
Therefore, a TMDL is in effect a ``pollution budget'' for an impaired 
waterbody. As such, it provides a guide to taking on-the-ground actions 
needed to restore a waterbody.
    A TMDL can focus on a small segment of a waterbody or on a group of 
waters in a larger watershed. Where many polluted waters are clustered 
together, some States have chosen to develop a more comprehensive, 
watershed approach to the problem--such as a Watershed Restoration 
Action Strategy as described in the Clean Water Action Plan.
    States develop the lists of polluted waters and the specific TMDLs, 
both of which must be approved by EPA. If EPA disapproves a State list 
or TMDL, the Clean Water Act requires EPA to establish the list or TMDL 
for the State.
Program Status
    The TMDL program was designed to provide a safety net, catching 
water bodies that were not protected or restored by the implementation 
of the range of general, broadly applicable, pollution control programs 
authorized in the Clean Water Act.
    Until the early 1990's, however, EPA and States gave top priority 
to implementing these general clean water programs and gave lower 
priority to the more focused restoration authorities of the TMDL 
program. As a result, relatively few TMDLs were developed and many 
State lists were limited to a few waters and were not submitted in a 
timely manner.
    Several years ago, citizen organizations began bringing legal 
actions against EPA seeking the listing of waters and development of 
TMDLs. To date, 17 of these cases have been resolved with agreement for 
State actions to identify impaired waters and establish TMDLs. Where 
States fail to act, EPA will step in and identify the polluted waters 
or establish the TMDLs.
    In 1996, EPA determined that there was a need for a comprehensive 
evaluation of the TMDL program. The Agency convened a committee under 
the Federal Advisory Committee Act (FACA) to make recommendations for 
improving program implementation, including needed changes to the TMDL 
regulations and guidance.
    The TMDL FACA committee was composed of 20 individuals with diverse 
backgrounds, including agriculture, forestry, environmental advocacy, 
industry, and State, local, and Tribal governments. Two representatives 
of the USDA served as ex-officio members of the FACA.
    In July 1998, the committee submitted to EPA its final report 
containing more than 100 consensus recommendations, a subset of which 
would require regulatory changes. Although the TMDL FACA committee did 
not meet agreement on all issues, the recommendations guided EPA in the 
development of the revisions to the TMDL regulations proposed in August 
of last year.
    EPA already has taken a number of other significant steps to 
improve State progress in listing polluted waters and developing TMDLs. 
For example, in August 1997, EPA issued two policy memoranda providing 
guidance for State lists and requesting that States work to improve the 
pace of establishing TMDLs. In particular, EPA asked that States 
develop 8-13-year schedules for developing TMDLs for all listed 
waterbodies, beginning with the lists due April 1, 1998.
    States have made very good progress developing lists of polluted 
waters. All States submitted 1998 lists and EPA has approved all but 
one of these lists. In a few cases, EPA added waters to a State list. 
These lists, and maps of each State's polluted waters, are available 
over the Internet at www.owow/tmdls.epa.gov.
    In addition, the number of TMDLs developed by States and approved 
by EPA has been steadily increasing over the past several years. 
Between 1972 (when Congress passed section 303(d) as part of the Clean 
Water Act) and 1999, States and EPA established approximately 1000 
TMDLs.
    Since October 1999, States have established, and EPA has approved, 
over 600 TMDLs for a variety of pollutants, including sediments and 
nutrients which are predominately caused by polluted runoff. Across the 
country, over 2000 TMDLs are now under development.
What Do the 1998 Polluted Waters Lists Tell Us?
    The 1998 State lists of polluted waters tell us that the 
overwhelming majority of Americans--218 million--live within 10 miles 
of a polluted waterbody. Over 20,000 waterbodies across the country are 
identified as not meeting water quality standards. These waterbodies 
include over 300,000 river and shore miles and 5 million lake acres. 
The size of these impaired waterbodies range from short sections of 
headwater streams to long sections of major rivers like the Mississippi 
and the Colorado.
    Direct pollution discharges from sewage treatment plants and 
factories are the sole cause of pollution in about 10 percent of 
polluted waters. Another 47 percent are impaired by a combination of 
point source discharges and polluted runoff. The remainder are impaired 
by polluted runoff from diffuse or nonpoint sources. Some of the 
impairments are the result of ongoing discharges while others stem from 
historic or ``legacy'' problems resulting from past activities.
    The pollutants most frequently identified as causing water quality 
impairment include sediments, excess nutrients, and harmful 
microorganisms. Metals, including toxics, also contribute to these 
impairments.
    On average, there are about two pollutants identified for each of 
the impaired waters. This means that as many as 40,000 TMDLs may need 
to be done, although watershed approaches can be used to address many 
of these individual segments at the same time and in a coordinated 
manner for greater efficiency.
    To better illustrate the story that the 1998 polluted waters lists 
tell, I have several maps and graphs--including a national map 
depicting the percent of impaired waters by watershed, and a bar graph 
indicating the leading reasons that waters do not meet their clean 
water goals--that I would like to enter into the record.
Proposed Regulatory Revisions
    On August 23, 1999 President Clinton announced proposed revisions 
to the existing TMDL program regulations that will significantly 
strengthen the Nation's ability to achieve clean water goals and 
provide States, Territories, and authorized Tribes clearer direction 
for identifying and restoring polluted waters. In addition, EPA 
proposed changes to the Clean Water Act discharge permit program and 
the water quality standards program that complement the proposed TMDL 
regulatory revisions.
    These regulatory revisions are mid-course changes to the existing 
program based on current data and first-hand, on-the-ground knowledge 
regarding the status of the Nation's waters. Moreover, the insights we 
gained from the Advisory Committee process provided guidance on 
constructive changes to the program.
    I want to briefly describe several of the key changes we have 
proposed to the TMDL program.
     Schedules for TMDLs.--The proposed rule calls for States 
to develop schedules for establishing TMDLs within a 15-year timeframe, 
2 years beyond the current 13-year schedule. By proposing this 15-year 
period, EPA is recognizing that some States need to develop many TMDLs 
and that it takes tirade to develop a useful and effective TMDL. In 
addition, the regulation does not set a time period for implementing 
the TMDL and attaining water quality standards, thereby giving States 
discretion to develop appropriate schedules for implementation.
     Priorities for TMDLS.--The proposed regulations also give 
States considerable flexibility in setting priorities for the 
development of TMDLs over the 15-year period. While the proposed 
regulations would require States to prioritize their listed waters, the 
only specific priority setting requirements in the proposed rule are 
that States assign a high priority to polluted waters designated as a 
public drinking water supply where the pollutant of concern causes a 
violation of a drinking water standard, and to waters where pollutants 
threaten species listed as endangered or threatened under the 
Endangered Species Act.
     Allocating Needed Pollution Reductions for Polluted 
Waters.--The proposed regulations make clear that TMDLs include an 
allocation of the needed pollutant reductions among sources of 
pollution, but give States freedom to allocate needed pollution load 
reductions among sources in whatever manner they deem appropriate, 
provided that the sum of the allocations will result in the water 
attaining State water quality standards.
     Defining ``Reasonable Assurance''.--EPA's current guidance 
asks that there be a ``reasonable assurance'' that a source actually 
will attain its pollution reduction allocation. Without such assurance, 
the TMDL may not result in attainment of the State-adopted water 
quality standard.
    The proposed regulations more explicitly define ``reasonable 
assurance.'' In effect, ``reasonable assurance'' means a high degree of 
confidence that allocations in the TMDL will be implemented. For point 
sources, reasonable assurance would mean that Clean Water Act permits 
will be consistent with any applicable pollution reduction allocation 
contained in the TMDL.
    For diffuse or ``nonpoint'' sources, where no permit is required, 
``reasonable assurance'' would mean that nonpoint source controls are 
specific to the pollutant causing the impairment, implemented according 
to an expeditious schedule, and supported by reliable delivery 
mechanisms and adequate funding. Some examples include regulations or 
local ordinances, performance bonds, memoranda of understanding, 
contracts or similar agreements. Voluntary and incentive-based actions 
may also be acceptable measures of reasonable assurance and are 
encouraged. It is important to note that a State decision to allocate 
load reductions to nonpoint sources does not bring that operator into a 
permit or regulatory program.
     TMDL Implementation Plans.--The proposed regulations call 
for organizing TMDL related information concerning needed pollution 
reductions, allocation of pollution reduction effort among sources, and 
``reasonable assurances'' in a single document called an implementation 
plan.
    States will have the responsibility for developing the plans, but 
will work closely with a range of stakeholders at the local, waterbody 
level. States could develop implementation plans for clusters of listed 
waters on a watershed scale, as long as the scale of the implementation 
plan is consistent with the geographic scale at which the TMDL is 
established.
     Permit Program Revisions.--In cases where a State 
developed a TMDL that is disapproved by EPA, the Clean Water Act 
requires EPA to establish the TMDL. In such cases, the proposed 
regulations would allow EPA to use the authority that States now have 
to designate certain sources, such as large Animal Feeding Operations 
and large fish farms, as needing Clean Water Act permits. EPA would use 
this authority only where a permit is needed to assure implementation 
of measures called for in a TMDL established by EPA.
    The new regulations also would provide EPA the authority to object 
to and, if necessary, reissue expired permits issued by States for 
discharges to polluted waterbodies where reissuance is necessary to 
move toward meeting water quality standards while a TMDL is being 
established or to ensure that a completed TMDL is adequately 
implemented.
     Silviculture Activities.--The proposed regulation provides 
States with discretionary authority to require that discharges of 
stormwater from forest activities such as road building and harvesting 
have a Clean Water Act permit, but only where the discharge contributes 
to the nonattainment of a State-adopted water quality standard or is a 
``significant contributor'' of pollutants to waters.
    Although silviculture activities are not the most significant 
source of water pollution nationwide, they can cause serious pollution 
problems in some areas. In the preliminary data for the forthcoming 
1998 305(b) report, thirty-two States identified forestry as a source 
of water quality problems for 20,000 miles of rivers and streams and 
220,000 acres of lakes. Other States identified serious problems from 
pollutants, such as sediment and nutrients, that can result from 
forestry and other activities, but did not identify source categories.
    This regulatory revision is narrowly tailored to allow the State 
permitting authority the option of requiring an individual silviculture 
discharger to address a significant water pollution problem through the 
use of a permit when other tools (e.g. financial assistance, voluntary 
measures) are unavailable, are not being implemented, or have proven 
ineffective.
    EPA recognizes that many States have strong and effective voluntary 
programs for reducing water pollution from silviculture operations, and 
expects that most States will continue to rely on these programs both 
to protect the quality of waters that are now clean and to restore the 
quality of waters identified as polluted.
    Where EPA uses its backstop authority and establishes a TMDL for a 
State, and allocates pollution reductions to forestry sources, the 
Agency will rely on voluntary, incentive and financing approaches for 
implementing these load allocations where they are proven effective. 
Only in cases where no other option offers a ``reasonable assurance'' 
of implementation would EPA consider using the proposed regulatory 
authority to require a discharge of stormwater from a forestry 
operation to have a Clean Water Act permit. EPA expects to use this 
authority as a last resort.
     New Discharges to Polluted Waters.--The proposed 
regulations outline a new approach to achieving progress toward 
attainment of water quality standards in polluted waterbodies after 
listing and pending establishment of a TMDL. Because the new regulation 
would allow up to 15 years for States to develop TMDLs, there is a 
significant risk that conditions will decline in many waters before the 
TMDL is developed.
    Existing regulations allow new dischargers to polluted waters, as 
long as the discharge ``does not cause or contribute to the violation 
of water quality standards.'' This means the dischargers either will 
not discharge pollutants causing the water to be impaired, or if they 
intend to discharge such pollutants, their permit must include effluent 
limitations that ``derive from and comply with'' water quality 
standards (e.g. the pollutant concentration level in the newly 
permitted effluent does not exceed the allowed concentration level of 
the pollutant in the receiving water).
    EPA is proposing to strengthen this requirement by requiring that, 
where a State (or EPA where it issues the permits) allows large new or 
significantly expanded discharges to these waters, discharge permits 
must result in ``reasonable further progress'' toward water quality 
goals. Where possible, permits are to include an offset from another 
pollution source of one-and-a-half times the proposed new or expanded 
discharge. At a minimum, the permit is to do no further harm to the 
receiving water. This provision would help to assure that pollutants 
that bioaccumulate or are controlled based on mass loading, rather than 
concentration, do not make already polluted waters worse.

                               CONCLUSION

    Most Americans are rightly proud of the tremendous progress the 
country has made over the past 25 years in improving the quality of our 
rivers, lakes, and coastal waters. The days of rivers bursting into 
flame and lakes dying are behind us.
    This accomplishment resulted from a team effort--Congress lead the 
way in passing the Clean Water Act and other Federal laws, and Federal 
agencies like EPA and the Department of Agriculture did their part. But 
much of the real, on-the-ground work has been done by the States, 
cities, small towns, and individual stewards of the land, like farmers, 
ranchers, and woodland managers.
    The 1972 Clean Water Act set the ambitious--some thought 
impossible--national goal of ``fishable and swimmable'' waters for all 
Americans. At the turn of the new millennium, we are finally within 
striking distance of that goal. We need to maintain our traditional 
programs to protect clean waters. But today, we are able to list and 
put on a map each of the 20,000 polluted waters in the country. And, we 
have a process in place--the TMDL program--to define the specific steps 
needed to restore the health of these polluted waters and to meet our 
clean water goals within the foreseeable future.
    It is critical that we, as a Nation, rededicate ourselves to 
attaining the Clean Water Act goals that have inspired us for the past 
25 years. The TMDL regulations we have proposed draw on the core 
authorities of the Clean Water Act and refine and strengthen the 
existing program for identifying and restoring polluted waters. They 
provide a map that will support us in our effort to fulfill the 
original promise of the Clean Water Act.
    Some who have commented on the proposed regulations have suggested 
that we are asking the country to take too great a step toward cleaner 
water and that we should set aside these proposals. I respectfully and 
strongly disagree.
    We began this effort over 3 years ago by forming a Federal Advisory 
Committee including a wide range of interested parties. We used the 
report of this Advisory Committee, and input from States and others, to 
develop a proposed regulation. We extended the comment period on the 
proposed rules to January 20 of 2000 and actively sought public 
comments and input from all interested parties for 150 days. We held a 
series of public meetings around the country on this proposal to 
respond to questions and listen to alternatives.
    A key theme of many of the comments we heard in developing the rule 
is the need to increase financial resources for States to manage this 
effort and to assist pollution sources in implementing needed controls. 
We recognize this need. We have increased funding for key State grant 
programs in recent years. Congress approved the Administration's 
requests to add $100 million to State grants for the nonpoint pollution 
control program in fiscal years 1999 and 2000. Most importantly, for 
fiscal year 2001, the President has proposed a major increase to EPA 
grants to States targeted specifically for development of TMDLs. This 
funding, when matched by States, will provide $75 million for this 
important work. This is complemented by the proposed $1.3 billion 
increase in conservation programs at USDA. We heard the call for 
increased resources and we responded.
    Mr. Chairman, some observers will tell you that these new 
regulations are more of the old, top-down, command-and-control, one-
size-fits-all approach to environmental protection. In fact, the 
regulations are guided by a vision of a dramatically new approach to 
clean water programs.
    This new approach focuses attention on pollution sources in proven 
problem areas, rather than all sources. It is managed by the States, 
rather than EPA. It is designed to attain the water quality goals that 
the States have set and to use measures that are tailored to fit each 
specific waterbody, rather than a nationally applicable requirement. 
And it identifies needed pollution reductions based on input from the 
grassroots, waterbody level, rather than relying on a single, national, 
regulatory answer. In sum, we think we are on the right track to 
restoring the Nation's polluted waters.
    Over the next several months, we will work with other Federal 
agencies, States, and other interested parties to develop a final 
regulation to help the Nation better achieve the goal of restoring 
polluted waters.
    Thank you, Mr. Chairman and members of the subcommittee for this 
opportunity to testify on EPA's efforts, in cooperation with States and 
other Federal agencies such as the Department of Agriculture, to 
restore the Nation's polluted waters.
    I will be happy to answer any questions.
                                 ______
                                 
  STATEMENT OF WILLIAM NIELSEN, COUNCIL PRESIDENT, EAU CLAIRE, WI, ON 
                BEHALF OF THE NATIONAL LEAGUE OF CITIES

    Mr. Chairman, members of the subcommittee: I am Bill Nielsen, 
President of the Eau Claire, Wisconsin City Council and a member of the 
National League of Cities Energy, Environment and Natural Resources 
Steering Committee. I also served as the only elected representative of 
the nation's cities on the TMDL Federal Advisory Committee. I am here 
today to testify on behalf of the National League of Cities and the 
16,000 cities across the Nation we represent on the regulations 
recently proposed by the Environmental Protection Agency on Total 
Maximum Daily Loads.
    I would like to make clear at the outset of my testimony that, 
while city officials are distressed and frustrated by endless unfunded 
Federal mandates, we vigorously support the goals and objectives of the 
Clean Water Act. We recognize and appreciate the invaluable 
contribution made by the Federal Government in assisting cities in 
restoring and protecting our nation's rivers, lakes and streams. 
Without the substantial financial investment made by all three levels 
of government in our municipal wastewater infrastructure, cities would 
not have made the progress we have over the past 20 plus years. Since 
the 1972 Amendments to the Clean Water Act were passed we have been 
using best available technology to address pollutants from point 
sources. We believed that the TMDL program would take the next step in 
addressing the major remaining sources of pollutants--those from 
nonpoint sources.
    This partnership of Federal, State and local governments, as this 
committee knows well, has resulted in significant reduction of 
pollution from point sources at levels approaching 95 percent or 
better. NLC believes that EPA's TMDL regulation, if implemented as 
proposed, fractures our partnership and unjustifiably places the burden 
solely on the nation's cities.
    That we continue to have impaired waterbodies is not in question. 
That some of these impairments can be attributed to municipal 
activities or activities in municipalities is also not in question. 
What is in question is who will bear the preponderant responsibility 
for attainment of water quality standards: those over whom there is 
statutory control because they fall within the purview of the law, or 
those whose contributions cause continued nonattainment of water 
quality standards?
    We understand that the Clean Water Act principally addresses point 
sources. We know there are sources contributing to stream degradation 
that do not fall within the parameters of the Clean Water Act. What we 
do not understand is how EPA can manipulate the statute to make 
municipalities--in effect--legally responsible for the pollutant 
contributions of sources not covered by the law.
    The National League of Cities believes the TMDL proposal, if not 
amended, will:
     severely limit growth and economic development in urban 
areas;
     obstruct compliance with remediation of sanitary sewer 
overflows (SSOs) and/or combined sewer overflows (CSOs);
     impose impossible requirements on discharges from 
municipal separate storm sewer systems (MS4s);
     halt conversion initiatives to bring septic systems into 
treatment facilities and thereby adversely affect logical and orderly 
annexation procedures;
     shift the financial burden for pollutant reductions from 
nonpoint sources to local tax and ratepayers; and,
     generate endless litigation that will fall principally on 
National Pollutant Discharge Elimination System (NPDES) permit holders, 
not on sources that contribute to stream degradation.

            AFFECTS ON URBAN GROWTH AND ECONOMIC DEVELOPMENT

    NLC believes that the proposed ``offsets'' and changes to the 
antidegradation policies of the Clean Water Act will have significant 
negative ramifications on growth and economic development in the 
nation's cities.
    First, while the offsets are limited to ``large'' facilities, that 
is the direction municipalities are moving in dealing with wastewater 
treatment. We are unaware of any decentralization initiatives of these 
operations occurring now, and it is doubtful that such a strategy would 
be workable, cost-effective or even allowable. As the requirements 
imposed on municipal wastewater treatment facilities and their 
adjuncts--CSOs, SSOs, and MS4s--become more complex and costly, 
consolidation, more often than not, provides better opportunities for 
economies of scale, access to expert professional staff, and adequate 
funding. Thus, as municipal wastewater treatment operations move into 
the ``large'' category (defined as publicly owned treatment works 
[POTWs] serving populations of 50,000 or more), the requirement will 
fall more heavily on this sector of dischargers, thus penalizing, or 
halting entirely, efforts to become more effective and efficient in 
meeting the needs of growing populations and in controlling pollutants.
    Second, from the perspective of municipalities, the statement in 
the preamble to Part III (see Federal Register, Vol. 64, No. 162, page 
46067) indicating that ``[e]xisting dischargers are likely to be in a 
poorer position to bargain for offsets because they may not have a 
realistic option to locate on a different water body'' is both naive 
and appallingly revealing of the agency's agenda.
    Water treatment facilities (both wastewater and drinking water) are 
located where they are because they serve the needs of a specific 
population in residence in a specified area. Moving them to ``a 
different water body'' is simply not an option unless the agency 
envisions wholesale relocation of entire cities. NLC would argue that 
these provisions are inappropriately applied to the nation's cities, 
which should be exempt from any offset requirements given the nature of 
municipal operations that affect receiving waters.
    NLC also has significant concerns with EPA's suggestion that non-
municipal (industrial) operations--which may actually be in a position 
to relocate to a more pristine waterbody--be encouraged to do so. The 
nation's city officials work very hard to keep their communities 
economically viable. NLC can neither condone nor support a Federal 
agency's policy that has such major ramifications and unintended 
consequences for the economic well being of urban America.
    While the preponderance of cities in the United States have 
populations of 50,000 or less, population is not inherently 
representative of pollutant loadings. It is unclear whether EPA 
proposes to exempt non-municipal (industrial) point sources in these 
cities from the offset requirements. If that is not the case, the 
agency is again encouraging behavior that is inimical to the interest 
of these cities by creating an incentive for major industrial 
dischargers to move to smaller jurisdictions to avoid having to comply 
with the offset provisions. This is unacceptable.
    Third, NLC also takes exception to EPA's rationale that ``such 
narrowed coverage [i.e., application of the offset policy to large new 
or significantly expanding dischargers] is more likely to insure 
development of a successful market for pollutant trading.'' Anyone who 
has ever been in a large city would know that they are primarily 
surrounded by smaller cities--not by the nonpoint source activities 
that are responsible for the preponderance of the remaining pollutants 
to the nation's waterbodies. It is much more likely that ``success'' in 
``pollutant trading''--assuming point source to nonpoint source trading 
is even viable--would occur outside of urban areas, precisely where EPA 
is proposing it to be inapplicable. We completely disagree that the 
target dischargers are ``in the best position to achieve offsets.''
    Since we oppose the idea of pollutant trading in the first 
instance, we are not proposing that EPA broaden the applicability of 
this concept to more areas of the country. We merely wish to point out 
that the entire concept is fatally flawed.
    And finally, we believe the proposed changes to the antidegradation 
policy will have the effect of placing every waterbody in the United 
States on the table for TMDL consideration. Such a policy will force 
growth and expansion to unpolluted areas, particularly in light of the 
presumed ``zero'' discharge mandate that is implied in the proposed 
regulations. In our view, the proposal establishes zero tolerance for 
any new discharges in every city bordering or affecting a waterbody not 
meeting water quality standards, thus precluding any growth or major 
redevelopment in already developed areas.

         SHIFTING FINANCIAL BURDEN TO LOCAL TAX AND RATEPAYERS

    NLC also has environmental justice concerns about the offset 
proposals. The proposed rule, in effect, mandates that the nation's 
larger cities--or rather its taxpayers--finance the pollutant control 
activities of private sector entities. In the case of most nonpoint 
sources of pollutants, these entities will be outside the jurisdiction 
of the city. City elected officials cannot justify the use of local tax 
dollars to finance water pollutant control practices of entities over 
which we have no authority. And, whether a point or nonpoint source is 
within or outside of the city boundary, cities cannot finance the 
activities of a private/for profit venture. Nor can we justify such 
expenditures to our local tax and ratepayers when there are significant 
environmental and non-environmental unmet local needs. We, at the local 
level are currently struggling with implementation of the new Phase II 
stormwater program. That is where we need to invest our limited 
resources, not in solving problems caused by others.
    What is more, before we can implement effective offsets we need 
mechanisms that will help identify what is coming from where, how much 
is coming from whom, and whether there are strategies that will 
actually impact on these pollutants. This is true not only for nonpoint 
sources, but equally relevant to any inter-media trades such as EPA is 
proposing for waterbodies affected by air pollution.
    There is also very little certainty involved in the implementation 
of best management practices in the nonpoint source arena. EPA itself 
makes this case by elaborating on the uncertainty of successfully 
implementing and attaining the necessary reductions from nonpoint 
sources and the inconsistent enforcement authorities available to 
insure such reductions actually occur. Were this not the case, the 
agency would scarcely find it necessary to hold dischargers responsible 
for the attainment of the reductions by including such reductions in 
the discharger's NPDES permit.
    The proposal to incorporate assurances and enforceable mechanisms 
with respect to offsets obtained by point sources in their NPDES 
permits is one of the most egregious provisions in the proposed rule. 
NLC believes this proposed requirement clearly exceeds EPA's legitimate 
authority. To the best of our knowledge, Congress has not authorized 
the agency to designate point sources as surrogate authorities to 
ensure the attainment of water quality objectives from sources of 
pollutants not regulated by the law. EPA has no authority to expand the 
law beyond Congressional intent, nor can it take enforcement action 
against a specific discharger for the pollutant loadings of another 
discharger. NLC does not believe the agency can circumvent this fact by 
incorporating such requirements in an NPDES permit. Further, a city 
cannot assume liability for the actions of others carried out under 
contract. In effect, including pollutant loading reductions from 
sources outside of a city's boundaries in a municipal NPDES permit is 
unallowable.
    In the abstract, offsets may indeed be more ``cost effective'' than 
financing the removal of the last miniscule pollutant from a point 
source, but unless offsets work, they will be totally useless. Until 
all pollutant sources function under the same, or substantially 
similar, enforcement authorities, EPA cannot expect effective trading 
markets by simply shifting the burden of controlling pollutants from 
nonpoint sources to point sources.

              WET WEATHER ISSUES (STORMWATER, CSOS, SSOS)

    EPA has proposed strategies for addressing TMDLs that appear to 
have been developed without consideration of the interrelationships 
among programs, the overarching goals and objectives of the Clean Water 
Act, or previously negotiated agreements between EPA and affected 
stakeholders. We believe, if implemented as proposed, the rules will 
either preclude or inhibit the ability of municipal point sources to 
comply with other significant requirements of the Clean Water Act. NLC 
believes this is especially true with respect to wet weather issues: 
CSOs, SSOs and municipal stormwater programs.
    City officials believe the proposed TMDL rules will nullify 
virtually all of the agreements reached by the three Federal advisory 
committees convened by EPA over the last 15 years to address urban wet 
weather problems. This includes any relief that may be realized from 
the recently concluded SSO FACA with respect to wet weather facilities, 
as well as any relief granted municipalities in EPA's August 1996 
Interim Permitting Approach for Water-Quality Based Effluent 
Limitations in Storm Water Permits which limited requirements to meet 
numerical effluent limits in municipal separate storm sewer system 
discharges. The specter of exactly such requirements seems inescapable 
in the continual references to wasteload allocations for stormwater 
discharges under the TMDL proposal. This dichotomy is of significant 
concern to the nation's cities since we believe there is inadequate 
knowledge, inexact technology, insufficient resources, and other 
insurmountable barriers, to assure that such an objective is 
attainable. We are concerned about the likelihood of having 
unattainable, enforceable standards imposed on local governments and 
reiterate our continuing opposition to the imposition of TMDLs on 
stormwater discharges until there is a substantially improved and 
objective body of knowledge demonstrating how and/or whether these 
objectives are realistic.
Stormwater
    EPA has just finalized regulations for the Phase II municipal 
separate storm sewer systems (MS4s). EPA, in convening a Federal 
advisory committee to assist the agency in developing these 
regulations, clearly indicated that it was the agency's intent that the 
Phase II program--which will apply to cities in urbanized areas of 
50,000 or more population--be significantly less complicated than the 
program developed by the agency for the Phase I cities. Many of the 
provisions in the Phase II MS4 regulations are based in large measure 
on recommendations and, in some cases, agreements among the 
participants in the Federal advisory committee. The use of general 
permits--as currently constituted--was perceived by the municipal 
community as a major step in the direction of simplifying an 
unnecessarily complicated program. If the TMDL proposal alters the use 
of general permits and information required in the Notice of Intent 
(NOI), the agreements by many members of the Phase II Stormwater FAC--
and the commitments made by EPA to the municipal caucus--will, in 
effect, be nullified.
    What is more, significant changes to the general permit provisions 
will invalidate EPA's claim (see Federal Register, Vol. 64, No.162, 
page 46084, C. Unfunded Mandates Reform Act) that there will be no 
impact on small governments. As cities have learned from their 
experience\1\ with the Phase I stormwater program, obtaining an 
individual permit, which may well be the result of these proposed 
provisions, will have a major financial impact on all local 
governments, including those with populations of less than 50,000.
---------------------------------------------------------------------------
    \1\ EPA estimated the cost of a Phase I permit to be between 
$35,000 and $75,000. Nationwide, the average cost of a Phase I permit 
application is $650,000 to $750,000.
---------------------------------------------------------------------------
    Most importantly, the nation's Phase II cities are just now 
beginning to develop their stormwater programs under a set of rules 
that were finalized last October. About the time these cities will have 
completed their stormwater program planning and begun implementation, a 
new regulation--TMDLs--will be superimposed creating a whole new set of 
criteria. A set of criteria, I might add, that we doubt anyone will 
know how to implement. It is already an uphill struggle for cities to 
get voter approval of new programs. Shifting targets and extensive 
program revisions exacerbate the problem not only for our local tax 
payers, but also for city officials who are called upon to explain why 
they didn't get it right the first time.
    NLC believes it is inappropriate to alter the parameters of general 
permits with respect to municipal stormwater discharges; impossible to 
meet more stringent requirements in a stormwater permit; and disruptive 
to continually change the requirements of programs, such as the MS4 
program, that are new and largely experimental.

Combined Sewer Overflows/Sanitary Sewer Overflows
    NLC is also concerned about the impact of implementing TMDLs on 
municipal initiatives to comply with Federal requirements to address 
combined and sanitary sewer overflows. If one Federal regulation 
requires cities to, in effect, divert these overflows to treatment 
facilities--either expanded existing facilities or new ones--what is 
the point of developing another regulation that will preclude cities 
from doing so? Cities cannot comply with Federal directives to redirect 
excess wet weather flows to treatment facilities while simultaneously 
being precluded from doing so unless they can obtain substantial 
offsets from other sources. In addition, cities face significant 
financing issues here. On the one hand the agency requires costly 
strategies to address overflows; on the other hand, cities can only 
secure permits for such facilities if they also buy offsets--all 
without any financial help from the level of government mandating the 
requirements. Cities, which are facing close to $1 trillion in unfunded 
water infrastructure needs over the next 20 years, simply do not have 
the required resources to do both. As usual, EPA is continually 
``sensitive'' in the proposed TMDL rules to its own limited resources 
as well as those of the States, but seems to be indifferent to similar 
constraints on local government.

Septic Systems
    As a matter of good environmental policy, many cities are 
attempting to bring users of septic systems into their treatment works 
as well. Here again, because of the increases in discharges resulting 
from such conversions, the TMDL proposed rules pose a disincentive to 
take such action because of the additional costs of offsets. Such a 
policy, we believe, will adversely affect local decisions and 
relationships with respect to annexation policies and procedures.
    In sum, NLC believes implementation of the proposed TMDL 
regulations would serve as a disincentive to replace septic systems and 
as an absolute bar to complying with CSO requirements and any future 
SSO mandates. We do not believe that EPA, in drafting the ``significant 
expansion'' proposals, adequately considered the impact on 
municipalities with respect to their wet weather responsibilities.

                            LISTING DECISION

    NLC is also concerned about the overreaching proposal to identify 
``threatened'' waters in the TMDL process. There are reportedly over 
40,000 impaired waterbodies that will be subject to TMDL requirements. 
We do not believe it is either appropriate or within the scope of the 
law to extend the program to waters that may, at some uncertain future 
date, have problems. Addressing the known problems in the nation's 
waters should be the nation's priority and limited resources should be 
targeted to these waterbodies. We believe there is more than sufficient 
work for the States and other affected entities in dealing with known 
impaired waterbodies. In our opinion, it is both unnecessary and 
overburdensome to involve waters that may have the ``potential'' to 
become impaired since the mere threat of being listed will serve as a 
significant incentive to take appropriate pollution prevention 
measures.
    NLC also believes the agency should require quality assured/quality 
controlled data as the basis for making TMDL listing determinations. 
While citizen monitoring activities are helpful, the results of these 
types of efforts cannot be the sole basis for making determinations 
that have significant resource implications for the nation's cities 
unless the accuracy of the information has been validated.
    City officials also object to the recommendation that there be 
limits on permit renewals in threatened waterbodies. Here again, EPA is 
targeting part of the problem to be all of the solution. At a minimum 
there should be an analysis to identify what sources are contributing 
to further impairment. The sources responsible for the impairment 
should then be the subject of actions to minimize or eliminate their 
contribution. The entire problem should not be presumed to come from 
point sources since they are not the only sources contributing to 
stream degradation.

                          NLC RECOMMENDATIONS

    At a minimum, NLC believes the following changes are essential:
    Offsets: NLC believes the offset provision should be discretionary 
for municipal facilities on the part of the permitting agency. In such 
cases offsets should be allowable only where it can be demonstrated 
that such a policy is appropriate and will not have adverse unintended 
consequences.
    Stormwater Permits: NLC believes all (Phase I and II) municipal 
stormwater permits should be exempt from the TMDL requirements.
    General Permits for Stormwater Discharges: EPA may find it 
necessary to alter the information sought in an NOI for non-MS4 general 
permits. However, since the stormwater regulations will apply for the 
first time to cities with populations between 50,000 and 99,999 (as 
well as those with populations under 50,000 in urbanized areas), NLC 
believes any such amendments should exempt all MS4 permits, not just 
those issued to ``small entities.'' Furthermore, general permits as 
currently designed should remain EPA's primary recommendation to 
permitting authorities as the optimal mechanism for municipal 
stormwater discharges.
    Listing: Only waterbodies that are determined to be impaired by 
quality assured/quality controlled data should be subject to listing 
for a TMDL.
                                 ______
                                 
   STATEMENT OF JAMIE CLOVER ADAMS, SECRETARY, KANSAS DEPARTMENT OF 
AGRICULTURE, ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE DEPARTMENTS 
                             OF AGRICULTURE

    Mr. Chairman and members of the subcommittee, thank you for the 
opportunity to present testimony on the Environmental Protection 
Agency's (EPA) proposed rules on Total Maximum Daily Loads (TMDLs). My 
name is Jamie Clover Adams. I am the Secretary of the Kansas Department 
of Agriculture and I appear today on behalf the National Association of 
State Departments of Agriculture (NASDA) and my colleagues from across 
the nation.
    We share your commitment to cleaning up the waters of the United 
States. American agriculture is dependent upon continued access to 
clean water, air, and fertile land for its viability. There are four 
issues of great concern to the nation's Secretaries, Directors and 
Commissioners of Agriculture regarding the proposed TMDL rule.
     It greatly exceeds EPA's statutory authority;
     It jeopardizes successful voluntary, incentive-based, 
nonpoint source management programs,
     It significantly expands command and control regulatory 
mandates with no flexibility to implement strategies that achieve 
results; and
     It fails to recognize the substantial State resources 
needed to address nonpoint source pollution--financial and technical 
assistance, scientific data, monitoring and Best Management Practice 
(BMP) research.

           A. THE TMDL RULE EXCEEDS EPA'S STATUTORY AUTHORITY

    We disagree with EPA that the Clean Water Act (CWA) provides ample 
authority to regulate nonpoint sources of pollution. Legislative 
history is clear that Congress made a conscious decision to treat point 
and nonpoint sources differently and separately. Point sources are 
directly regulated through National Pollutant Discharge Elimination 
System (NPDES) permits and nonpoint sources are addressed and managed 
under Section 319. In fact, in the EPA brief filed as part of Kansas 
Natural Resources Council and Sierra Club v. Carol Browner and State of 
Kansas, defendant-intervenor, EPA makes this very point. They argued, 
``Congress did not include any provisions requiring States or EPA 
directly to regulate nonpoint sources . . . Rather, under Section 319 
of the Act, Congress required States to prepare reports and develop 
management programs addressing various strategies, including `best 
management practices,' to reduce pollution from nonpoint sources.'' We 
believe the intent of the Clean Water Act is clear and EPA has also 
acknowledged this fact--nonpoint sources of pollution are not subject 
to mandatory regulations under the Clean Water Act, but are to be 
addressed through voluntary, outcome-based programs. It is imperative 
that the TMDL program not require States to operate in any different 
manner.

 B. THE RULE JEOPARDIZES SUCCESSFUL PROGRAMS ALREADY BEING IMPLEMENTED

    The Clean Water Act contains valuable provisions for nonpoint 
source management under Section 319 and 208. Also, farmers and ranchers 
have made great strides through their participation in programs 
established under the 1985, 1990 and 1996 Farm Bills. States are 
developing and implementing their own programs. For example, in my own 
State of Kansas, we are implementing voluntary incentive-based 
practices as part of the Governor's Water Quality Initiative, and we 
have monitoring data which shows these practices are improving the 
water quality in the area.
    EPA's TMDL rule fails to give States the flexibility that is needed 
to build on our progress. Instead, EPA's TMDL proposals substantially 
rewrite implementation of the Clean Water Act with prescriptive 
requirements, short deadlines, new and additional layers of planning, 
implementation, and oversight. This is counterproductive.
    States are on the forefront of addressing nonpoint water quality 
issues. We know what the problems are, we know what programs will help. 
States don't need EPA trying to dictate and prescribe solutions. In 
Kansas, we have written and are implementing 120 TMDLs in the Kansas 
Lower Republican Basin. We will have more done in the Upper and Lower 
Arkansas River Basins, as well as the Cimarron Basin by mid-2000. Lack 
of flexibility in the TMDL rule will slow our progress and our efforts 
to improve water quality in Kansas.

    C. THE TMDL RULE SIGNIFICANTLY EXPANDS ``COMMAND AND CONTROL'' 
 REGULATORY MANDATES WITH NO FLEXIBILITY TO IMPLEMENT STRATEGIES THAT 
                            ACHIEVE RESULTS

    States must have flexibility to build on programs that are already 
working to improve water quality. Almost all States are utilizing 
existing laws, regulations, strategies and programs to address water 
quality concerns related to agricultural runoff. States are 
aggressively pursuing and expanding resource conservation efforts to 
minimize nonpoint source pollution. To reduce nonpoint source pollution 
and improve water quality, we must have the cooperation of the 
agricultural community. Proceeding with a strategy that is based on 
heavy-handed mandates will not foster cooperation. In Kansas, for 
example, we implemented a State, voluntary, incentive-based program to 
reduce atrazine runoff. In the target subbasin, one-on-one work with 
landowners has resulted in 100 percent participation and improvements 
in water quality.

D. EPA'S RULE FAILS TO RECOGNIZE THE SUBSTANTIAL STATE RESOURCES NEEDED 
     TO ADDRESS NONPOINT SOURCE POLLUTION--FINANCIAL AND TECHNICAL 
        ASSISTANCE, SCIENTIFIC DATA, MONITORING AND BMP RESEARCH

    Over the past two decades, Federal agencies have seriously under-
invested in nonpoint source abatement programs. Nonpoint source 
programs have received only one to 2 percent of what has been spent on 
point source control. Technical assistance is equally as important as 
financial assistance for best management practices (BMPs). In Kansas, 
convincing farmers and ranchers to implement BMPs takes one-on-one 
dialog and assistance with implementation. Water quality data in all 
States is not adequate to make the kinds of decisions the EPA rule 
requires. Even in States like Kansas, where we have a network of 200 
monitoring stations across the State that have been in place for 20 
years, significant data gaps exist. Work in the Governor's Water 
Quality Initiative required additional chemical monitoring, as well as 
biological monitoring.
    States, like Kansas, are also investing in best management practice 
research. Farmers and ranchers want to do the right thing. We need to 
continue to provide the tools for them to do the job in a cost-
effective way. We need help funding this type of research.
    EPA's economic analysis greatly underestimates the cost of 
implementing TMDLs to the States and the private sector. In Kansas, the 
State Conservation Commission estimated the cost to implement practices 
on 192,000 acres in Nemaha County to achieve high priority TMDLs at $4 
to $5 million. With the average value of production per farm in the 
county at $90,000, high priority TMDL implementation will cost four to 
5 percent of the average farm's gross income.

                           SUMMARY OF REMARKS

    Proper management of nonpoint source pollution lies in State and 
local efforts. It is important to note that the Clean Water Act gives 
States the lead responsibility to prevent, eliminate, and reduce 
pollution. EPA's proposed regulations do not reflect this leadership 
role for the States. We need that partnership to jointly tackle the 
challenges of further reducing nonpoint source pollution. We hope the 
subcommittee will review our concerns closely.
    1. The TMDL rule exceeds EPA's authority. It is a rigid, top-down 
program that will not improve water quality.
    2. It fails to recognize the substantial costs associated with its 
implementation. Without adequate funding, States will not be able to 
move forward in addressing agricultural nonpoint source pollution.
    3. It is important to remember that this is NOT about pushing paper 
and process, it is about people. It's about farmers and ranchers, their 
livelihoods, their businesses and their families.
    We stand ready to work with Congress, EPA, and USDA on constructive 
solutions to improve water quality. On behalf of my State colleagues, I 
thank you for this opportunity to speak before the subcommittee.
                                 ______
                                 
                                 
                                 
Statement of David Holm, President, Association of State and Interstate 
                 Water Pollution Control Administrators
    Mr. Chairman, members of the committee and subcommittee. My name is 
David Holm. I am the President of the Association of State and 
Interstate Water Pollution Control Administrators (ASIWPCA) and the 
Director of the Colorado Water Quality Control Division. ASIWPCA is the 
national, professional organization of State officials who are 
responsible for implementation of the Clean Water Act. As those on the 
front line, the Association's membership has a unique perspective on 
the issues before this committee.
    In the 1972 Clean Water Act, Congress gave the States the lead role 
to develop and implement the water quality program. States support the 
Act's goal to restore and maintain the nation's water quality and we 
believe the establishment of total maximum daily loads (TMDLs) is one 
of many important mechanisms to be used to achieve cleaner water.
    The States have been in a continuing dialog with USEPA concerning 
the proposed regulation. As co-regulators, we met to address State 
issues and consider options for addressing those concerns. In addition, 
ASIWPCA has sponsored a series of State/EPA conference calls on the 
regulations and has been a co-sponsor with the Western Governors 
Association of a series of workshops. These forums have allowed 
significant discussion that, we are hopeful, will ultimately bear 
fruit. USEPA appears to be receptive to a number of State 
recommendations to modify and streamline the current proposal and build 
upon existing program authorities.
    Because of constraints placed on USEPA in the rulemaking process, 
the Agency has not been able to make any commitments to the States. For 
this reason, Mr. Chairman, my comments will address the regulation as 
proposed.
    States have invested significant staff resources in analyzing the 
proposed rule and have spent many hours in joint consideration of the 
anticipated impacts on our existing programs. What we see here is an 
effort by USEPA to move the water quality programs forward, which is of 
course laudable. We are concerned however, that the rule, as proposed, 
will have serious, if perhaps unintended, consequences on State 
programs. For details, we refer you to the attached written comments 
developed jointly by ASIWPCA, the Environmental Council of the States 
(ECOS) and the Coastal States Organization (CSO) which were shared with 
USEPA in the spirit of partnership as co-regulators.
    States are mindful that the proposed wholesale modification to the 
TMDL regulation is being put forth in the context of existing statutory 
authorities and current funding levels. We caution that State program 
budgets and staffing levels are not sufficient to implement the current 
regulation. Those levels will not likely to grow to meet an ambitious 
waterbody restoration agenda merely because an arcane Federal 
regulation is changed.

                             SECTION 303(D)

    The provisions of Section 303 (d)(1)(A) are fairly limited. States 
must:
    (1) identify waters that do not meet State water quality standards 
(WQS) after application of basic point source control requirements,
    (2) prioritize those waters and
    (3) determine the total waste load the water body is able to 
receive and still meet WQS (with a margin of safety).
    USEPA has 30 days to take approval action on a State submittal. If 
USEPA disapproves a State list or TMDL, they have 30 days to finalize 
one.

                         HISTORICAL PERSPECTIVE

   The Clean Water Program is complex and, as the attached diagram 
illustrates, TMDLs were envisioned as one component of a broad Clean 
Water Act program.
    Since 1972, States have allocated the limited funds available to 
address the ambitious Clean Water Act agenda. They established water 
quality standards, built and managed permitting and enforcement 
programs, financed municipal wastewater treatment facilities and 
developed nonpoint source (NPS) and watershed management programs. 
Since TMDLs were expensive and time consuming and the data and state-
of-the-art was limited--other Clean Water Act and State authorities 
were generally more useful.
    USEPA's priorities varied and did not, until recently, include 
TMDLs. Due to the failure of States and USEPA to achieve Section 303(d) 
there have been numerous court cases. States agree that TMDLs should be 
a meaningful and fundamental component of State water quality 
management programs. To bring this about, the Association believes that 
three fundamental challenges must be addressed:
    1. The significant lack of funding and adequate initiatives to 
address nonpoint source and other water quality problems in the current 
program,
    2. Major gaps in available data, research and monitoring, and
    3. Insufficient attention to multi-media and multi-jurisdictional 
water problems.

                           GUIDING PRINCIPLES

    In moving forward to improve the TMDL program, State water quality 
and environmental program managers emphasize:
    1. The States' lead role in the nation's clean water program must 
be maintained.
    2. TMDL requirements need be flexible and consistent with (a) 
existing statutory authority, (b) available resources, and (c) State 
water quality agency jurisdiction.
    3. Existing initiatives should be used, wherever possible, to 
achieve objectives.
    4. Expectations need to be clearly focused on desired environmental 
outcomes.
    5. The iterative approach is crucial to success, particularly for 
nonpoint sources.
    The magnitude of the task is formidable. Assuming an even 
distribution and no additional TMDLs, one TMDL would need to be 
approved each workday for the next 15 years by each of the 10 USEPA 
Regional Offices to complete all of them. Assuming (optimistically) 
that an ``80 percent savings'' could be achieved (taking advantage of 
lessons learned, economies of scale, and delisting inappropriate 
waters), States would have to produce (and USEPA approve) one TMDL per 
week per USEPA region for the next 15 years. This does not consider the 
need to plan for implementation, conduct additional monitoring, or 
actually implement the TMDL. Unless additional funds are provided, 
State would have to divert resources from other worthwhile water 
quality activities to keep on schedule.
    State experience demonstrates that cost estimates developed by 
USEPA are inadequate and incomplete (see attachments). USEPA states 
that TMDLs will cost $25,000 each. But, a mid-range is more likely to 
be $300,000-$1,000,000, depending on complexity (in Long Island Sound, 
$20,000,000 has been spent thus far on a nutrient TMDL). Annual costs 
for a decent effort at the State level could be in the range of $670 
Million-$1.2 Billion.

             CONCERNS REGARDING USEPA'S PROPOSED REGULATION

    The Association has read a significant number of the comments 
submitted to USEPA on their proposal. Commenters share a common 
interest in the overall goal to improve water quality and further 
develop and implement TMDLs. But, they differ greatly regarding:
    (1) How much of a burden can legally and realistically be placed on 
Section 303(d) to carry out the Clean Water Act and
    (2) The appropriate role of Federal, State, and Local governments.
    The primary State concerns are that:
     The proposal broadly expands the Federal role in water 
quality management and permitting, which would seriously undermine 
USEPA's relationship with State government.
     The role of Section 303(d) is greatly enlarged, beyond 
what the Act envisioned. It is not clear to the States, for example, 
that USEPA has statutory authority to:
    1. Cover waters that are: (a) impaired solely by nonpoint sources, 
(b) are not violating WQS or (c) have solutions underway using other 
authorities;
    2. Require that implementation plans: (a) be part of TMDLs and (b) 
include explicit assurances that the plan will be fully implemented, 
fully funded, adequately monitored, and fully compliant with the WQS; 
and
    3. Intervene in a State's TMDL development or administration of the 
delegated point source permit program (to permit NPS or issue expired 
permits).
     The proposal is too prescriptive. States should be able to 
take alternative approaches that achieve the intended environmental 
outcome (functionally equivalency) particularly with regard to nonpoint 
and wet weather sources.
     The proposal adds burdensome new layers to the existing 
program. The additional lists, implementation plans, reporting, etc., 
confuse an already complex situation and waste scarce resources.
     The proposed regulations would significantly restrict 
State ability to take ``adaptive management approaches'' to TMDL 
development and implementation.
     State water quality program officials cannot unilaterally 
develop TMDLs and implementation plans for problems that are beyond 
their jurisdiction. Impairments to interstate and international waters 
also present unique challenges.
     USEPA does not acknowledge the significant funding 
increases needed.

                              BOTTOM LINE

    The likely outcome of USEPA's proposal (unless refinements are 
made) would be less environmental progress and more litigation and 
delay. While the proposal is premised on the need for a major 
significant shift away from the historic point source focus toward 
watershed-based restoration, they reflect a pervasive top-down 
approach. This is unworkable where NPS management is the primary 
challenge and locally led initiatives are essential.
    NPSs need to be treated differently and with less analytical rigor 
than point sources. USEPA's proposal does not go far enough in 
recognizing that it is often impossible, given the data and resources 
available and the timeframes envisioned, to precisely quantify 
pollutant loadings from NPS runoff or to predict with certainty 
specific load reductions that will result from a given management 
practice. Achieving WQS requires an iterative process in which 
management practices are applied in watersheds, progress is made and 
evaluated, programs are adjusted and necessary additional funding is 
secured.
    It is not fair or realistic to expect that States could 
successfully implement a program that is beyond the plain reading of 
the Clean Water Act. States should not be used as surrogates to impose 
requirements that USEPA would have no authority to apply. Unless the 
broad array of stakeholders are willing to support the approach, 
partnerships States have worked very hard to achieve in the NPS arena 
will start to unravel and momentum will be lost.
    Unintended consequences are also a concern. USEPA's proposal 
imposes significant barriers to environmentally beneficial projects and 
community revitalization as well as encourages urban sprawl--since new 
or significantly expanding sources could not locate in impaired 
watersheds. States would be required to make decisions based on 
information that they cannot scientifically or legally defend. RCRA and 
Superfund program experience indicates that once a water body is on a 
303(d) list, a stigma attaches that makes it difficult to cooperatively 
solve problems. There are too many unanswered questions:
     What is USEPA prepared to do to assure they have the 
resources to administer the approach proposed?
     What sort of TMDL is approvable; will an approved 319, 
estuary or coastal zone management, habitat conservation or species 
recovery plan be acceptable?
     How can States control transboundary air deposition; what 
is USEPA willing to do under the Clean Air Act? Can a TMDL be 
approvable for abandoned mine drainage, when there is inadequate and 
unpredictable funding? What are Federal agencies willing to do for re-
mining of abandoned mine lands?
     How will USEPA streamline its process to meet the 
deadlines? How will the 135 day Section 7 consultation under the 
Endangered Species Act be reconciled with a USEPA 30 day deadline to 
act on lists and TMDLs? What happens if USEPA does not act within their 
deadline?
     Will USEPA decisions be held to the same high standards as 
States? What will USEPA do if a State cannot provide reasonable 
assurance re: funding?
     Will affected Federal Agencies commit to complete their 
implementation plan responsibilities by the scheduled deadlines? What 
if they do not?
     How will TMDLs on interstate and regional waters be 
addressed? What happens when TMDL development cannot be synchronized 
with related activities (revision/consistency of WQS, USEPA nutrient 
criteria development, etc.)?
     What happens if a State's best efforts cannot bring a 
stream into compliance?
   state recommendations to improve usepa's proposed tmdl regulations
    The plain reading of the statute leads the Association to conclude 
that:
    TMDLs should be limited to a credible technical analysis which 
identifies the maximum allowable pollutant load (or other conditions) 
necessary to attain WQS for the pollutant(s) of concern.
    Section 303(d) should apply only to impaired waters where TMDLs can 
make a meaningful contribution to solving the problem.
    Resources: Funding for Section 106 (State water quality management) 
and Section 319 (nonpoint source control) must triple--with increases 
targeted to impaired waters. Major increases are also needed in the 
U.S. Department of Agriculture programs to provide needed technical 
assistance and support conservation practices in impaired watersheds.

                   MONITORING, LISTING AND DELISTING

     List Cycle: USEPA should establish a 5-year listing cycle 
and provide at least 2 years lead time after promulgation before the 
next list must meet new requirements.
     Methodology and Use of Data: States (not USEPA) should to 
determine what data are credible and appropriate for use in the listing 
process. Decisions must be based on credible and appropriate data (not 
anecdotal evidence or evaluated data) that indicate exceedance of State 
WQS. The mere presence of a listed species under the Endangered Species 
Act or exceedance of a maximum contaminant level (MCL) threshold under 
the Safe Drinking Water Act is inadequate.
     Delisting: States should be able to delist waterbodies 
using the same procedures and methodologies that apply to listings at 
any time when sufficient new data is available that indicates WQS are 
attained or a TMDL is approved by USEPA.
    Scheduling and Priorities: USEPA should not mandate priorities or 
schedules. States should have discretion to set them, in consultation 
with the public, based on all relevant considerations. They should be 
able to adjust schedules beyond the 15-year deadline for good cause.
    Implementation/Reasonable Assurance: States should be able to 
reference and if necessary update water quality management plans at the 
same time or following submission of a TMDL--implementation plans 
should not be a required TMDL element. For NPS, States should be able 
to implement a variety of controls as expeditiously as possible, as 
described in their upgraded NPS management programs or other recognized 
mechanisms (existing water resource management programs such as. 
estuary plans, 6217 programs, forest management plans, Federal land 
management plans and other effective programs in the States).
    Public Involvement: The proposal needs to recognize the enormous 
effort, time and resources required throughout the process to achieve 
meaningful consultation and involvement. The public petition process 
proposed undermines that effort. Petitioners should be required to 
demonstrate to USEPA that they have exhausted their administrative 
remedies at the State level.
    USEPA Action: It is the States' responsibility, in the first 
instance according to the Clean Water Act, to develop and propose 
TMDLs. USEPA has no authority to do so (absent their disapproval of a 
State's TMDL). USEPA should describe its methodology and approval 
process and use the State listing methodology when taking action. If 
USEPA does not act in 30 days, a State submittal should be deemed 
approved.

    CHANGES TO THE NPDES PERMIT AND WATER QUALITY STANDARDS PROGRAMS

     USEPA Actions in Delegated States: Problems with State 
permit programs should be addressed under NPDES delegation agreements 
and current regulations. USEPA has no authority under the Act to issue 
an expired permit or to permit NPSs. Based on USEPA's track record, it 
does not seem realistic to assume that their proposal would ever work.
     Interim Period Before TMDL Development and Approval/
Offsets: States should develop site-specific and/or watershed 
approaches that are consistent with current anti-degradation 
regulations and continued progress toward water quality goals. USEPA 
should delete the proposed offset provision.
     General Permits: Alternative sets of requirements should 
be allowable, depending on whether the discharge would be to a 
waterbody that is meeting WQS or impaired, with the goal of no-net 
increase in impaired waters. The TMDL program should not make the 
general permit process as resource intensive as issuing individual 
permits.
    Summary: The Association, in conjunction with the Environmental 
Council of the States and the Coastal States Organization, has 
commented to USEPA that existing statutory authorities do not provide 
for the level and kind of requirements outlined in the proposed 
regulation. This is particularly true for the nonpoint sources of 
pollution. We have serious concerns that the proposed regulation 
inherently limits the policymaking discretion of the States.
    We are convinced that this proposal is a significant rulemaking 
under Unfunded Mandates Reform Act which requires USEPA to hold the 
cost to States of new mandates as low as possible and to seek funds 
from Congress in the next fiscal year to offset those costs. It is also 
subject to the President's Executive Order 13132, issued in August 1999 
which states: ``Where there are significant uncertainties as to whether 
national action is authorized or appropriate, agencies shall consult 
with appropriate State and local officials to determine whether Federal 
objectives can be attained by other means.''
    Congress has a critically important role in clarifying its intent 
and in contributing to the creation of an appropriate framework under 
which we all may proceed. We asked that the committee support State 
efforts to identify and further explore with the USEPA, other means to 
attain our collective water quality objectives, as envisioned in the 
above referenced authorities.
    Congress will also have a significant role in determining the 
amount and kind of funding resources to be made available to the 
States, to local governments and to the USEPA and USDA for 
implementation of the overall TMDL program. We would like to enter into 
discussions with you and with the appropriating committees to secure 
the funds necessary to create, develop and implement a successful TMDL 
program.
    The States would also like to enter into discussions with the 
Congress and the USEPA relative to the reauthorization of the Clean 
Water Act. Because several of the issues addressed in the proposed rule 
can be considered as statutory in nature, we ask that the Congress be a 
leader in future dialogs relating to Clean Water Act authorities and 
any necessary amendments to achieve our overall water quality goals.
    Mr. Chairman, we thank you for the opportunity to present the 
perspectives and recommendations of the State Environmental, Water 
Quality and Coastal program officials. We appreciate the leadership 
role the committee is demonstrating on TMDLS and the work of your 
staffs to assure that Congressional intent and interests are being 
incorporated into USEPA's rulemaking. We look forward to having the 
opportunity to continue to work together toward the achievement of 
cleaner water for all Americans.
    Attachments: Comments on the USEPA proposed regulations, (Joint 
letter by the ASIWPCA/ECOS/CSO); Fact Sheet: State TMDL Resource Needs, 
Summary USEPA Cost Estimates; Excerpts of State Comments
                                 ______
                                 
 Statement of the Association of State and Interstate Water Pollution 
                         Control Administrators
                                                  January 19, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency
Washington, DC.
    Dear Ms. Browner: We write on behalf of the undersigned 
organizations concerning USEPA's proposed revisions to the agency's 
water quality regulations, 40 CFR parts 122, 123, 124, 130, and 131, 
published in the Federal Register on August 23, 1999.
    These State organizations have worked together to develop the 
attached comments and may also submit individual comments reflecting 
media specific perspectives. We appreciate the opportunity to comment 
on the proposal, which represents one of the most important and 
sweeping initiatives in the nation's effort to protect its waters.
    There are several points of overarching importance that we wish 
USEPA to keep in mind as it evaluates the detailed comments that 
follow.
    (1) Congress provided in the Clean Water Act that the States should 
have ``the primary responsibility and rights . . . to prevent, 
eliminate and reduce pollution, (Section 101(b)).
    (2) States, having this authority, should be full partners with 
USEPA in the management, protection and restoration of water resources.
    (3) States support the goal of the Clean Water Act and are 
empathetic as to the position in which the USEPA has been placed by the 
series of TMDL court cases.
    (4) The Federal executive branch, through the President's Budget 
Request and its negotiations with the Congress, needs to secure 
significant additional Federal funding for the Clean Water Programs.
    The Federal Water Pollution Control Act clearly identifies the 
States' lead role in developing and implementing water quality 
management programs. The States accept the responsibility to address 
important water quality problems and to be accountable for progress.
    States should be considered by USEPA as full partners in the 
management, protection and restoration of water resources. USEPA may 
not as a matter of law or policy consider that States are merely an 
interest group or stakeholder in the implementation of the Clean Water 
Act.
    The undersigned organizations represent those public servants on 
the front line in the efforts to protect our nation's water quality. It 
is the State and local governments that will be called upon to 
implement, substantially pay for, and defend the USEPA's final 
regulations in court. As USEPA has stated publicly . . . for USEPA to 
be successful its mission, the States must be successful in attaining 
their environmental goals.
    States have from the outset, supported and worked toward the 
accomplishment of the goals of the Clean Water Act to restore and 
maintain water quality. The States understand the implications of the 
numerous court cases on this subject. Translating and transforming 
those court actions and different opinions into an operating program 
and regulations applicable throughout the country is a formidable task.
    The proposed regulations are premised on a major and significant 
shift away from the historic point source focus toward a watershed 
based restoration approach. Yet, the proposed regulations reflect a 
pervasive top-down, command-and-control approach to water quality 
protection, which is unworkable where nonpoint source management is the 
primary challenge. While States support this shift to the watershed 
approach, the available scientific, financial and management tools are 
inadequate to assure successful implementation.
    It is critical that the Federal executive branch commits to and 
works aggressively for significant Federal funding increases to address 
water quality problems and support State environmental agencies. In our 
judgment, the infusion of sufficient funding to existing programs and 
supporting mechanisms could greatly enhance State efforts to accomplish 
the majority of the Federal objectives underlying the proposed 
revisions. Moreover, the imposition of unfunded mandates on States, or 
mandates that are paid for at the expense of other State programs, is 
unacceptable.
    In 1995 the Congress recognized this principle in the adoption of 
the Unfunded Mandates Reform Act. We believe this principle requires 
the USEPA to hold the cost to States of new mandates under the proposed 
regulations as low as possible, and also firmly commit to seek funds 
from Congress in the next fiscal year to offset these costs. We can 
document through the implementation of established TMDL's that the 
costs associated with the proposed regulations will far exceed the 
expenditures anticipated by USEPA.
    Finally, there are significant uncertainties as to congressional 
intent in the Federal Water Pollution Control Act and the legal basis 
for several of the proposed new requirements. For example, the State 
organizations are not convinced that there is a statutory basis for (1) 
requiring the inclusion in 303(d) lists and TMDL development for waters 
impaired solely by nonpoint sources; (2) requiring that implementation 
plans be submitted as part of TMDL's; or (3) providing the USEPA with 
the authority to intervene in a State's development of a TMDL.
    These concerns are raised in light of the President's Executive 
Order on federalism (August 1999).

          National action limiting the policymaking discretion of the 
        States shall be taken only where there is constitutional and 
        statutory authority for the action and the national activity is 
        appropriate in light of the presence of a problem of national 
        significance. Where there are significant uncertainties as to 
        whether national action is authorized or appropriate, agencies 
        shall consult with appropriate State and local officials to 
        determine whether Federal objectives can be attained by other 
        means. (Executive Order 13132; Section 3(b)).

    The Executive Order contemplates exactly the kinds of uncertain 
authority presented in the proposed regulations, inasmuch as the 
proposed regulation clearly limits the policymaking discretion of the 
States. The Executive Order thus requires the USEPA to explore with 
States whether there are other means to attain the Federal objectives--
clean water for all Americans, which we share.
    These ``other means'' would, at a minimum, require that USEPA 
incorporate the maximum degree of flexibility into the revised 
regulations. Water quality problems generally, and nonpoint source 
problems in particular, vary greatly from State to State, within a 
State (or States), and from watershed to watershed. Such problems can 
also vary significantly within the same watershed from season to season 
and from year to year.
    Simply put, (1) States must have the authority, commensurate with 
their responsibility, to develop and establish water quality programs 
and remedies to solve site specific pollution problems, (2) a 
prescriptive, top down, command and control, national approach, is 
inappropriate and counter productive and, (3) significant funding 
increases will be necessary to implement the existing TMDL 
requirements, let alone any additional responsibilities.
    The regulations must be crafted to accommodate a myriad of 
approaches and iterative management in moving toward attainment of 
water quality standards. States need the flexibility to set priorities, 
establish realistic schedules, use functionally equivalent State 
programs in lieu of USEPA's permit-based approach for some sources, 
adopt innovative programs, and rely on incentive-based and voluntary 
efforts.
    These facts make it imperative that the USEPA and the States work 
cooperatively to ensure that any revisions to the TMDL and related 
programs are workable. We stand ready to assist the Agency in achieving 
a successful outcome.
    Attached is a compendium of specific comments addressing specific 
concerns with the proposed regulatory revisions. We look forward to 
working with the USEPA to ensure that America honors its commitment to 
clean water in the most reasonable and effective way possible.
            Sincerely,
                                   Lewis Shaw,
                                             ECOS President, Secretary 
                                               of the South Carolina 
                                               Department of Health and 
                                               the Environment.

                                   J. Dale Givens,
                                             ECOS Water Committee Co-
                                               Chair, Secretary, 
                                               Louisiana Department of 
                                               Environmental Quality.

                                   Sarah Cooksey, Chair,
                                             Coastal States 
                                               Organization, State of 
                                               Delaware.

                                   J. David Holm,
                                             ASIWPCA President, 
                                               Director, Colorado 
                                               Division of Water 
                                               Quality.

                                   Jon. L. Craig,
                                              ASIWPCA Vice President, 
                                               Director, Oklahoma 
                                               Division of Water 
                                               Quality.
                                 ______
                                 

                                FOREWORD

    The State managers of this nation's environmental, water quality 
and coastal programs have developed the attached comments on the 
proposed TMDL regulations. The comments have been reviewed and approved 
by the Environmental Council of the States (ECOS), the Association of 
State and Interstate Water Pollution Control Administrators (ASIWPCA) 
and the Coastal States Organization (CSO).

                       I. GENERAL RECOMMENDATIONS

    The U.S. Congress, under the auspices of the 1972 Clean Water Act, 
gave States the lead role in the development and implementation of the 
water quality program. Because of this central role, States will be 
directly impacted by the proposed changes in the TMDL program.
    States support the goal of the Clean Water Act to restore and 
maintain the nation's water quality. States also believe that the 
establishment of total maximum daily loads (TMDLs) is one of many 
important tools to be utilized in the pursuit of cleaner water.
    States have been actively cleaning up the nation's waters for 
nearly half a century. The achievement of impressive results are 
clearly evident nationwide. The water is cleaner, in spite of the 
tremendous population growth, expanded urbanization, industrialization 
and recreational demands placed on limited water resources. States are 
very proud of the fact that the Clean Water Act is among the most 
successful environmental statutes in history.
    With the initial passage of the Federal Water Pollution Control Act 
Amendments of 1972 (Public Law 92-500), USEPA and their State partners 
set a course for addressing the highest priority pollution problems 
first. It is for this reason that the establishment of State water 
quality standards and permitting programs, the design and construction 
of municipal waste water treatment facilities and the development of 
Section 208 areawide planning and nonpoint source management programs, 
took precedence over the establishment of total maximum daily loads 
(TMDLs).
    Tremendous strides have been made over the past several decades and 
significant water quality improvements have been achieved. It is now 
appropriate to focus priority attention on the requirements of Section 
303(d) of the statute and to establish TMDL's as a meaningful and 
fundamental component of State water quality management programs.
    To bring this about, USEPA and the States will need to place 
particular emphasis on three key fundamental challenges:
     The need for substantial additional funding to address 
nonpoint source related and other water quality problems,
     The presence of serious gaps in data, research and 
monitoring, and
     The lack of sufficient attention to multi-media and 
multijurisdictional water problems.
    The States and their representative organizations (ASIWPCA, CSO and 
ECOS) have carefully reviewed the draft proposal and are supportive of 
its overall goal and intent. comments and recommendations, States 
emphasize the following principles.
    1. The States' lead role in the nation's clean water program must 
be maintained.
    2. Requirements must be flexible and consistent with existing 
statutory authority, available resources and the jurisdiction of State 
water quality agencies.
    3. Existing programs and initiatives should be used, wherever 
possible, to carry out our water quality objectives. These include 
Sections 319, 305(b), 303(e), and 320 of the Clean Water Act, Section 
6217 of the Coastal Zone Act Reauthorization Amendments, forestry 
management plans, habitat conservation plans and species recovery 
plans, as prepared pursuant to the Endangered Species Act, and other 
existing proven programs. (See attachment 1).
    4. Expectations need to be clearly and consistently focused on 
desired environmental outcomes. TMDLs should promote stakeholder 
cooperation and not create disincentives for broad-based public 
participation.
    5. The iterative approach to solving problems, along with 
stakeholder involvement, has been and will continue to be crucial to 
successful water quality management, particularly for nonpoint sources. 
Point and nonpoint sources should be dealt with equitably, in a manner 
that is sensitive to their different characteristics.
    With these principles in mind, the States have the following 
concerns regarding the proposed regulations:
    The proposal broadly expands the Federal role in water quality 
management, which would seriously undermine USEPA's relationship with 
State government. The pervasive tone is one of USEPA command and 
control in all aspects of the TMDL program, which is neither necessary 
nor desirable. Instead, the proposal should seek to collaboratively 
improve programs where Federal, State and Local entities are empowered 
to fulfill their respective roles.
     The role of Section 303(d) is greatly enlarged without 
clear congressional mandates. States do not believe, for example, that 
USEPA has clear statutory authority for proposed nonpoint source 
requirements. (See attachment 1)
     The proposal is too prescriptive and certain details 
should be embodied in guidance. States need maximum flexibility to 
achieve intended environmental outcomes. State functionally equivalent 
approaches should be supported and encouraged. Inconsistencies between 
the preamble and the regulations need to be eliminated so that it is 
clear what would be required.
     The proposal adds burdensome new layers to the existing 
program for example requiring additional lists, and TMDL implementation 
plans. USEPA and the States should work cooperatively together to 
address impaired waters and to improve the public's understanding of 
water quality (e.g. through program improvements to Section 305(b) and 
319).
     Where nonpoint sources are of significant concern, the 
proposed regulations would significantly restrict States' ability to 
take ``adaptive management approaches'' to TMDL development and 
implementation. These approaches were discussed in detail at the State/
EPA Wye Woods Forum on TMDLs (November 1999).
     State water quality program officials cannot unilaterally 
develop TMDLs and implementation plans for problems that are beyond 
their jurisdiction (e.g. air deposition). Impairments to interstate and 
international waters also present unique challenges and the regulations 
must provide a simpler framework under which States take the lead role.
     Resources are not available to carry out the requirements 
as discussed below. USEPA must be willing to request significant 
increases in funding for Federal and State activities for fiscal year 
2000 and beyond.
    The States provide the following detailed recommendations to 
resolve these concerns and achieve the intended environmental outcomes 
in a practicable and timely manner. USEPA should finalize the proposal 
with the full understanding that it will be expected to comply with the 
requirements to the same extent as their State counterparts.

                             II. RESOURCES

    Since the passage of the Federal Water Pollution Control Act 
Amendments of 1972, tremendous emphasis has been placed on the control 
of point source discharges. Funds have been specifically targeted 
toward the design and construction of wastewater treatment facilities 
and the establishment of permitting and water quality standards 
programs. Relatively few Federal and/or State dollars have been 
targeted toward the planning and assessment components of the statute, 
nor have adequate funding levels been authorized and appropriated for 
the abatement of nonpoint sources of pollution.
    Funding for water quality programs overall, and in this instance 
for total maximum daily loads (TMDLs) has been consistently inadequate. 
Even when assuming the adoption of the enhancements recommended by the 
States herein, the costs for water quality monitoring, assessment, TMDL 
development and implementation will experience a tremendous increase at 
every stage of the process.
    No less than a tripling of the existing levels of funding will be 
needed to successfully implement the current TMDL program. The proposed 
regulations would greatly exacerbate the funding difficulties being 
experienced by the States. It is essential that the necessary 
additional funding for TMDL implementation not be siphoned off from 
existing programs or agencies currently providing program, technical 
and/or scientific assistance to State and Local governments. The Agency 
must also be mindful of the burdens being placed on point and nonpoint 
source dischargers and of the impacts relative to economic development, 
community revitalization, etc.
    The costs of implementing the changes to Part 130 and 131 need to 
be examined in their totality. The discrepancies of funding needs must 
be examined by the Agency and funding projections modified to reflect 
an appropriate level of fiscal need. States and interested stakeholders 
have much to share with USEPA in this regard and we urge the Agency to 
carefully consider the financial input being provided during the course 
of the comment period. State TMDL development and implementation to 
date clearly demonstrates that the cost estimates developed by the 
USEPA are inadequate, incomplete and misleading. Far more will be 
required to develop a TMDL than the $25,000 USEPA envisions. For 
example:
     For Long Island Sound, over $20 million was expended from 
1986-2000 for nitrogen based TMDLs alone.
     For Tallahala Creek in Jones County, Mississippi, the 
downstream TMDL for dissolved oxygen (beginning at the small city of 
Laurel) required approximately 5 FTEs over 2 years at a cost of 
$450,000.
     It has taken Texas 5 years, 8 FTEs and $2.2 million to 
develop one phosphorous TMDL for a waterbody impacted by both point and 
nonpoint sources in the Bosque watershed involving concentrated animal 
feeding operations--and the TMDL is not finished yet.
     In California, TMDLs of medium complexity now require an 
investment of $350,000 and complex TMDLs require approximately $ 1.1 
million each. In fiscal year 2000, the water program estimates the 
total TMDL work to be $9.1 million.
     Florida has a new law on TMDLs. In fiscal year 2000, the 
State will allocate $1.2 million and 23.5 FTEs to TMDL development. 
They need annually an additional $700,000 for model development, 
contract work, lab analysis and equipment/maintenance and 12 more FTEs 
(approximately $ I million) for implementation plan development.
     The State of Washington needs about 84 FTEs annually to 
meet current requirements, but is able to provide less than 42. They 
face an over $69 million workload to complete 1130 TMDLs.
     In South Carolina, it has taken more than 3 FTEs and $ 1.9 
million to develop a TMDL for the Waccamaw River/Intercoastal Waterway.
    It must be emphasized that these funding levels were expended under 
the current program and do not take into consideration the costs 
associated with: (1) the proposed new requirements, (2) full 
development and implementation of TMDLs or (3) the new costs to be 
incurred by dischargers and other related stakeholders.
    When coupled with the fact that the current program is grossly 
under-funded and that the new regulations will require more than 40,000 
TMDLs to be developed, the regulatory changes proposed by USEPA are a 
significant rulemaking for the 50 States and Interstate Agencies.
    Recommendation.--To address the impaired waters of the nation:
     At a minimum, funding for Section 106 and Section 319 
assistance must triple--with the increase focused on the restoration of 
impaired waters. States should be able to pass through the level of 
effort requirement to local governments or other qualified entities 
that are willing to conduct needed activities, in accordance with State 
adopted procedures.
     States and USEPA need to work together to assure maximum 
flexibility on the use of those funds to support TMDL work. USEPA must 
not micro-manage State funding decisions.
     Major increases in USDA conservation programs for EQIP and 
technical assistance are also needed, again targeted to impaired 
waters.
    USEPA and USDA must be willing to request the funding needed to 
carryout a credible program in fiscal year 2000 and future budget 
cycles. States are willing to work side-by-side with the Federal 
agencies to secure these additional resources from Congress.

                 III. MONITORING, LISTING AND DELISTING

    States agree that Clean Water stakeholders need a readily 
accessible and understandable inventory of waters. However, the 
proposed expanded coverage under Section 303(d) does not accomplish 
that and exceeds statutory authority. The Agency needs to be cognizant 
of the fact that listing will engender intense scrutiny and opposition 
that can be counter-productive. An overly complex listing process will 
cause significant delays and divert scarce resources from State TMDL 
development and implementation on impaired waters. As co-regulators we 
should learn from the mistakes of the hazardous waste and superfund 
programs where the stigma attached to listing undermined overall 
objectives.
    USEPA and the States need to build a better relationship between 
Sections 303(d), 305(b),319 and 303(e) of the Clean Water Act. (See 
attachment 1). The 305(b) Report should be the vehicle for developing 
information concerning the overall status of the quality of all State 
waters and for making that information available to the public. To this 
end, the States expect to work with USEPA to enhance the credibility 
and utility of the 305(b) process. The Section 303(d) list, then, 
should be developed as the portion of the 305(b) Report for which TMDLs 
should be completed for impaired waters.
    Year 2000 List (Sec. 130.30(a)): States require substantial lead-
time to make significant changes in the TMDL listing process. In many 
cases, States will be required to go through a rulemaking process to 
adopt their list. The proposed regulations do not recognize this State 
rulemaking process.
    Recommendation.--USEPA should provide a minimum of 2 years lead-
time after promulgation of the regulations before the next list is 
subject to the new requirements. However, if a State determines that it 
will submit its list, during this interim 2-year period, pursuant to 
existing regulations, USEPA should review and take action within the 30 
days.
    List Cycle (4130.30(a)): Listing should be compatible with the 5-
year rotating watershed assessment approach being used by States. 
States agree that a short listing cycle tends to ``over-emphasize the 
listing of waterbodies as opposed to establishing and implementing 
TMDLs'' and is ``inefficient because States generally do not find 
significant changes in water quality over . . . a short period.''
    Recommendation.--USEPA should establish a 5-year listing cycle 
under Section 303(d). States may want to tailor the process to allow 
for the submission of partial updates to accommodate listing and 
delisting decisions on a rotating cycle. USEPA should review and take 
regulatory action within the 30 days for such partial submittals. 
Section 305(b) Reports should be on a 5-year cycle with annual updates.
    Methodology/Related Issues (5130.21, 130.23 and 130.24): The 
regulations should engender an interactive working relationship and it 
is important that decisionmaking methodologies are clearly documented 
and understood. States are operating under hectic schedules and need to 
know early in the process whether USEPA views their methodologies as 
acceptable. In interstate and international waters, lack of early and 
consistent feedback will hinder timely submittal by the States.
    Recommendation.--States should have the discretion to consult with 
USEPA to ensure an acceptable methodology is used. USEPA should commit 
to providing feedback during the public comment period. Methodology 
should be discussed in a State's 303(e) continuing planning process 
(CPP), as directed by Section 303(e) of the Act itself, rather than as 
a required element of the 303(d) list process. (See attachment 1). 
Accordingly, Sections 130.21(b), 130.23, and 130.24 should be revised 
to reflect this change and should be moved to the portion of the 
regulations that addresses the CPP. The States are willing to work with 
USEPA on developing public participation plans for CPP development.
    Listing and Use of Data (Sec. 130.22): Any decision to list waters 
must be based on credible and appropriate data that indicate exceedance 
of State Water Quality Standards (WQS). The mere presence of a listed 
species under Endangered Species Act (ESA) or exceedance of a maximum 
contaminant level (MCL) under the Safe Drinking Water Act, is 
inadequate for the purposes of the Clean Water Act, because at issue 
for 303(d) purposes is the status of a segment's attainment of WQS 
criteria and uses.
    As the preamble to the proposed regulations states, the FACA 
Committee ``preferred basing listing decisions on monitored data,'' 
although evaluated data has sometimes been used in the listing process. 
The States agree with the FACA recommendation that ``the best available 
data'' should be used in the listing process. The States strongly 
disagree, however, that States should be required to list waters based 
on information that is not both credible and appropriate to the 
process. The experience of the States is that anecdotal evidence and 
evaluated data regarding water quality are neither credible nor 
appropriate for use in making a listing decision that may later impact 
permitting and planning decisions. If based principally on such 
anecdotal evidence, these listing decisions will not be judicially 
defensible final State administrative actions.
    Recommendation.--The proposed Section 130.22 should be rewritten to 
allow States the flexibility to determine what data are credible and 
appropriate for use in the 303(d) listing process. This information 
should include, but not be limited to, data secured through Sections 
106(e)(1) and 104(a)(5) of the Act and other data determined by the 
State to be credible and appropriate. The regulations should recognize 
that list development should be consistent with USEPA-approved State 
QA/QC plans and adopted State methodology.
    Criteria for 303(d) Listing (4130.25): The relationship between the 
States' CPP, the 305(b) Report and the 303(d) lists must be recognized, 
clarified and consolidated. USEPA's proposed TMDL regulations should 
encourage integration of the States' monitoring, basin planning 
processes, and funding mechanisms. The proposed 303(d) listing process 
is too complex and further confuses the relationship between these 
existing processes. It is critical not to impede the TMDL process at 
the outset in listing disputes and unnecessary litigation.
    The Clean Water Act envisions that the Section 305(b) Report will 
be inclusive of all waters of the State--(i.e., impaired as well as 
unimpaired). The addition of proposed Section 303(d) Parts 2, 3, and 4 
listing categories exceeds the authority of the Clean Water Act. 
Furthermore, the requirement to include waterbodies solely impacted by 
nonpoint sources on the 303(d) list is a strained interpretation of 
Section 303(d)(1)(A). The Congress has examined these issues and 
determined that they should be addressed elsewhere in the statute. In 
fact, a Supreme Court case has made it clear that ``Few principles of 
statutory construction are more compelling than the proposition that 
Congress does not intend sub silentio (by its silence) to enact 
statutory language that it has earlier discarded.''
    Recommendation.--Consistent with the language of the Clean Water 
Act, States' 303(d) listings should identify those waters (extracted 
directly from the State's 305(b) Report or other appropriate data 
sources) for which effluent limitations required by Clean Water Act 
Sections 301(b)(1)(A) and 301(b)(1)(B) are not stringent enough to 
implement any WQSs applicable to such waters and for which TMDLs are 
the appropriate solution. Section 305(b)(1)(A) is the more logical 
basis for inventorying and reporting on the status of all waters and is 
particularly appropriate considering the practical and resource 
implications of USEPA's proposal.
    States reserve the right to identify on the 303(d) list, waters 
where USEPA (or a regional authority) can provide a leadership role to 
address impairments caused by one or more pollutants, which are outside 
of the States' control. Examples of such TMDLs include: international 
waters, interstate waters, or those waters affected by atmospheric 
deposition.
    The Section 303(d) list should not include:
     Threatened waterbodies,
     Waters affected by pollution, (not pollutants) or
     Waters where TMDLs or other effective control strategies 
have been developed.
    Given the afore mentioned concerns about statutory authority, 
considerable controversy surrounds USEPA's requirement to include 
waters impaired solely by nonpoint source pollutants on the 303(d) 
list. If USEPA does require such waterbody listings, States should be 
able to list them separately from other listed waters. States support 
USEPA's recognition at various points in the preamble that TMDLs for 
nonpoint sources may look quite different than for point sources.
    For all other categories of impaired or threatened waterbodies, 
States should utilize their existing authorities (specifically the 
305(b) Report) to itemize those waterbodies and associated water 
quality issues. They should be able to shift waters between listing 
categories whenever appropriate.
    Delisting (Sec. 130.29): States are concerned about USEPA's lack of 
recognition of the need to establish a flexible mechanism for delisting 
waterbodies. States are also concerned about the potential impacts of 
the offset strictures outlined in the proposed NPDES regulations and 
the length of time it would take USEPA to approve State delisting of a 
waterbody. It is important to recognize that listing as well as 
delisting may be an ongoing (vs. every 5 year) process.
    Recommendation.--Section 130.29(a) should be revised to allow 
waterbodies to be delisted upon approval of a TMDL by USEPA. In 
addition, Sections 130.29(c) and (d) should be deleted. This is in 
keeping with the States' recommendation that the 303(d) list be 
reformatted to move USEPA's proposed Part 3 waterbodies and threatened 
waterbodies to the 305(b) report.
    States should be able to delist waterbodies using the same 
procedures and methodologies that apply to listings. States support the 
second option under Section 130.29(b), to allow the delisting of a 
waterbody if new data or information indicates the waterbody has 
attained WQSs. The proposed regulatory language ``. . . when you 
[State] develop your [State] next list . . .'' should be deleted:
     Delisting should be allowed at anytime that sufficient new 
data is available.
     USEPA must establish administrative procedures necessary 
to take action on any and all State requests for delisting within 30 
days of State submittal (see also Section VIII).

         IV. SCHEDULING AND PRIORITIES (SEC. 130.28 AND 130.31)

    States are committed to restoring impaired waters within aggressive 
timeframes and recognize the value of deadlines and priorities. 
However, there are no statutory priorities or deadlines for TMDL 
development, and there are many uncertainties States will encounter 
along the way.
    Many factors need to be considered in setting State priorities and 
schedules for TMDL development. The proposal should not prescribe 
criteria or confuse the priority of listed waters with the schedule for 
TMDL development.
    In some States, the proposed regulations would result in virtually 
all listed waters becoming a high priority (especially if ESA and MCLs 
are significant factors). It is neither efficient nor appropriate to 
delay all other TMDL development until those for high priority waters 
are completed. TMDLs for high priority water bodies can be complex, 
time-consuming, and/or developed under court-ordered schedules.
    Recommendation.--The proposed Section 130.28 (a) and (b) should not 
contain mandatory assignments of priorities. Rather, it should identify 
factors to be considered by States in developing their priorities. This 
is consistent with Section 
303(d)(1) of the law, which provides that ``States shall establish a 
priority ranking for such waters taking into account the severity of 
the pollution and the uses to be made of such waters.'' States should 
have discretion to set priorities and schedules, in consultation with 
the public, based on all relevant considerations (e.g., the priority of 
the water, complexity, available resources, time required, readiness to 
proceed, level of public support). The State water quality authority 
and State drinking water authority should be encouraged to communicate 
on priorities relating to TMDL development and source water protection, 
etc.
    If USEPA includes a requirement for a schedule to be part of the 
303(d) list proposed, Section 130.31 should be modified to authorize 
States to adjust schedules and USEPA to accept extensions beyond the 
15-year timeframe for good cause demonstrated by a State.

                         V. ESTABLISHING TMDLS

    There are a number of areas that are of major concern to the States 
relative to the establishment of TMDLs. Specifically:
    (1) The process of establishing TMDLs that rely, at least in part, 
on non-point source control must embrace and promote the watershed 
approach. States will need the flexibility to utilize phased control 
measures to restore water quality. While the goals outlined in the 
Agency's proposal are laudable, the regulations as written are far too 
prescriptive and rely heavily on the historic approach to point source 
control. USEPA should focus on desired outcomes and discuss further 
details in guidance.
    (2) The Clean Water Act does not require the inclusion of 
implementation plans for TMDLs under Section 303(d). States agree on 
the importance of State implementation plans. In fact, many States are 
required under State statutes to create such plans as a component of 
their water quality standards process. However, USEPA does not have 
such authority under Section 303(d) and should, therefore, rely on 
other established program authorities (e.g. Sections 319, 303(e) etc.).
    (3) The elements of TMDLs proposed in Section 130.33(4) and (6) and 
Section 130.34, requiring the identification of specific pollutant 
sources and a quantification of NPS pollutant loads, will be 
technically and legally challenged in the future. It is essential that 
control measures for NPS pollutant impairments take the form of phased, 
incremental application of BMPs on a watershed basis. They will not 
result in clear and measurable improvements early in the process.
    (4) Available funding and scientific tools are inadequate for USEPA 
or the States to effectively and successfully adhere to the 
expectations outlined in the proposed regulation, particularly as 
related to nonpoint sources of pollution.
    TMDL Definition (4130.2(h) and 130.33): As outlined in Sections 
130.2(h) and 130.33, the definition and ten elements of a TMDL are 
overly prescriptive and will result in significant complications for 
both the States and the USEPA in completing and approving TMDLs. More 
importantly, the CWA does not authorize USEPA to create a requirement 
that States submit and obtain USEPA approval of an implementation plan 
as an element of the TMDL. Not only is there no mention of 
implementation plans, there is no such authority in Section 303(d) for 
USEPA to determine how a State is to implement its TMDLs.
    Most of the proposed requirements in Sections 130.2(h) and 130.33 
have emanated from the historic point source approach for addressing 
water quality problems. Neither the States nor the USEPA will be 
successful in adhering to these prescriptive requirements given the 
complexities and uncertainties associated with nonpoint source 
pollutants and the lack of wet weather standards. States believe that 
the required elements proposed by the regulations may, in some cases, 
supplant elements a State deems necessary or more appropriate for a 
particular TMDL, based on the circumstances of the waterbody.
    Recommendation.--The definition of a TMDL should be limited to ``a 
credible technical analysis, which identifies the maximum allowable 
pollutant load (stressor) or other conditions necessary to attain and 
maintain water quality standards, for the pollutant or pollutants of 
concern.'' States should be allowed to express a TMDL as a mass per 
time, toxicity, or other appropriate water quality condition. To 
establish effective TMDLs, States recommend USEPA make the following 
changes to elements outlined in Sections 130.33(b)(1) through 
130.33(b)(10) and offer these as guidance rather than regulation:
     The proposed Section 130.33 (b)(6) should be shortened to 
read as follows: ``Load allocations, ranging from reasonably accurate 
estimates to gross allotments, to nonpoint sources of a pollutant.'' 
The additional details proposed require a level of specificity that 
will be difficult, if not impossible to provide with each TMDL.
     In Section 130.33(b)(9), the term ``future allocation'' 
should be used rather than ``allowance for future growth''. USEPA 
should recognize that future growth can occur despite a TMDL cap, thus 
USEPA's proposed term is imprecise and misleading. Second, the concept 
of ``allowance for growth'' in the context of State regulatory actions 
imparts the wrong connotation for TMDLs--as if the State is controlling 
growth, whereas it is often a Local government function.
     Under Section 130.33(b)(10), States should submit 
implementation plans, as provided under existing Sections 303(e), 319 
and 402, as opposed to requiring an additional USEPA approvable plan 
under Section 303(d).
     The term ``other appropriate measures'' which can be found 
in the existing regulations under Section 1 30.2(i) should be retained 
to allow the States the flexibility needed to address nonpoint source 
pollutants. Section 130.34(1-4) should clarify that the loadfor NPSs 
can be broadly and generally expressed (e.g. estimated for agriculture, 
rather than broken down quantitatively for crop production vs. Animals 
or even being more specific as to quantifying loads for individual 
farmers).
    Implementation Plans (Sec. 130.2 and 130.33(b)(10)): The States 
support implementation as a component of the TMDL program, and are 
committed to restoring and maintaining water quality in impaired 
waterbodies. The States have consistently emphasized that the 
submission of a detailed implementation plan is not authorized under 
section 303(d) of the statute and should, therefore, not be a required 
as an element of the TMDL, nor should the approval of a TMDL be 
contingent on the approval of an implementation plan.
    The inclusion of a detailed implementation plan as a required 
element of the TMDL will likely delay TMDL approval because of the 
complex, subjective and often protracted dialog necessary for 
development and acceptance by the stakeholders of such plans. Dialogue 
with stakeholders on detailed implementation planning will be far more 
productive after TMDL approval by USEPA.
    States agree that there is merit in moving expeditiously forward to 
implement Section 303(d). However, the expectations of the USEPA and of 
the public need to be realistic, recognizing that a step-wise, phased 
approach will often yield the most meaningful water quality 
improvements.
    The prescriptive nature of Section 130.33 (b)(10) will 
significantly impede the flexibility States and USEPA need to establish 
and periodically adjust restoration plans, especially when dealing with 
NPS impaired waterbodies.
    Where TMDLs are being developed for waterbodies impaired primarily 
by nonpoint sources, the States should be allowed to rely on their 
upgraded 319 programs, including CZARA elements, as the implementation 
plan for the nonpoint source component of such TMDLs. States have 
recently expended considerable effort and resources, including USEPA 
Section 319 funds, to develop these plans.
    States understand the need for USEPA and the public to know 
specifically how water quality standards will be achieved, but we 
believe this can occur only after TMDL development, and as the 
iterative process for implementation begins. To expect this level of 
detail at the time of TMDL submission would unnecessarily delay 
submission and approval. Even with point sources, implementation 
requirements, as detailed in the NPDES permit, are approved separately 
and generally after TMDL approval. As was discussed at the Wye Woods 
Forum, it may be workable to include a generic outline as a component 
of the TMDL submission. This statement could be followed by an 
implementation plan, to be developed subsequent to TMDL approval by 
USEPA and relying existing authorities (e.g. 319, local watershed 
plans, etc).
    In the preamble, USEPA requests comments on whether implementation 
plans should be required as:
    1. An element of a TMDL,
    2. A submission accompanying the TMDL, or
    3. An update to a water quality management plan submitted at the 
same time as the TMDL.
    Recommendation.--Because Section 303(d) does not require the 
submission of implementation plans, States recommend that the USEPA 
modify option 3 to clarify that an update or reference to a water 
quality management plan may be submitted, at the same time or following 
submission of the TMDL. This would maximize the use of existing 
authorities under Sections 303(e) and 319, as well as other existing 
water resource management programs (e.g. estuary plans, 6217 programs, 
forest management plans, Federal land management plans and other 
effective programs in the States). The accompanying implementation plan 
could be approved under a separate USEPA action or receive implicit 
approval based on prior USEPA acceptance of these other management 
plans.
    States also strongly encourage USEPA to allow the flexibility to 
craft implementation plans in a manner that recognizes the differences 
associated with point and nonpoint source pollution and considers the 
various environmental, economic, social, and legal factors associated 
with a particular water body and type of impairment.
    Reasonable Assurance (Sec. 130.33(b)(10)(iii)): Reasonable 
assurance for nonpoint sources, as defined in Sections 130.2(p) and 
130.33 (b)(10)(iii), will be extremely difficult for States to provide. 
This is because of (1) the limited State authority to regulate nonpoint 
sources, (2) the lack of adequate Federal and State funding, and (3) 
the limitations of existing nonpoint source data and assessment 
technologies.
    Recommendation.--The definition of reasonable assurance for 
nonpoint sources should be revised to indicate that it can be 
determined by the State's commitment to implement a variety of NPS 
controls as expeditiously as possible and as described in an upgraded 
NPS management program or other recognized mechanisms. Implementation 
of BMPs takes time and the water quality results are not always 
immediately apparent. In most States, they are voluntary, but NPS 
management plans describe in detail how States intend to achieve 
implementation.
    Transitional TMDLs (Sec. 130.38): States strongly support the 
concept of transitional TMDLs. The proposed 12-month timeframe is, 
however, far too short.
    Recommendation.--USEPA should approve TMDLs submitted within 18 
months of final rule changes if the TMDL meets either the existing or 
the revised TMDL water quality requirements.

                         VI. PUBLIC INVOLVEMENT

    Public participation is fundamental to successful TMDL development 
and implementation. TMDLs with broad-based support should be given 
great deference by the Agency. However, States are concerned about the 
proposal's failure to recognize the enormous effort, time and resources 
that will be required throughout the process to achieve meaningful 
consultation and involvement. The unreasonably high expectations, given 
the heavy TMDL workload and short deadlines, would not enable States to 
achieve that objective.
    Public Petition Process (Sec. 130.65): The Agency should not 
encourage, or establish a petition system that implicitly encourages 
citizens to bypass State processes and go directly to USEPA. The USEPA 
should reinforce, not undermine, the States' primary role in TMDL 
development and encourage citizens to participate fully in State 
processes.
    Recommendation.--Petitioners should be required under Section 
130.65 to demonstrate that they have exhausted their administrative 
remedies in seeking the requested action in the State TMDL development 
process. Available information as to why a State has declined to take 
the requested action should be required as part of the petition 
submittal. USEPA needs to create a meaningful State consultation 
process.

  VII. CIRCUMSTANCES UNDER WHICH USEPA ESTABLISHES TMDLS (SEC. 130.36)

    Section 103(a) of the Clean Water Act states, ``The Administrator 
shall encourage cooperative activities by the States for the 
prevention, reduction and elimination of pollution. . . .'' States have 
the lead role and are the first line of authority. If after a fair and 
reasonable opportunity to make progress, they are unable to be 
successful and there is no legitimate reason for delay, the proposal 
should clearly articulate USEPA's intent to take a leadership role. 
USEPA should rely on the States for assistance in a collaborative 
process that makes maximum use of existing forums.
    Recommendation.--Delete the language in Section 130.36, which gives 
USEPA the right ``to establish TMDLs for waterbodies and pollutants 
identified on the 303(d) list . . . if USEPA determines that you 
[State] have not or are not likely to establish TMDLs consistent with 
your [State] schedule . . .'' The Clean Water Act does not provide for 
such action by USEPA. It is the States' position that once a 303(d) 
list is completed and approved by USEPA, the Clean Water Act clearly 
provides that it is the States' responsibility, in the first instance, 
to develop and propose TMDLs.

       VIII. USEPA REVIEW OF STATE LISTS AND TMDLS (SEC. 130.36)

    USEPA has only 30 days to take approval action. States are 
concerned about USEPA's lack of resources, historic pattern of 
significantly delayed approval actions, and propensity to micro-manage. 
Any significant slippage in meeting deadlines would have serious 
detrimental effects on both State and USEPA credibility. Yet, the 
proposal does not recognize the need to address the problem.
    Recommendation.--USEPA should describe its methodology and the 
approval process. The regulations should outline clear procedures that 
the Agency will follow, consistent with the State comments and 
recommendations relative to the definition and minimum elements of a 
TMDL in Section 130.2, 130.33, 130.35, etc. USEPA needs to address more 
clearly how the Agency intends to accommodate (within its 30-day 
deadline) the 135-day consultation period with the Fish and Wildlife 
Service required under the Endangered Species Act.
     USEPA should commit to using the State's list development 
methodology, when taking action on the list.
     If USEPA does not take action in 30 days, a State 
submittal should be deemed approved.
     USEPA needs to be much more forthright on the resources 
that will be required to assure the process goes as smoothly as 
possible and that issues are resolved as early as possible in order to 
avoid the need for disapproval action.

     IX. CHANGES TO THE NPDES AND WATER QUALITY STANDARDS PROGRAMS

    States believe that the existing regulatory framework is adequate. 
The issues of concern are so complicated and circumstances so diverse 
that they are more readily addressed through guidance and existing 
NPDES delegation agreements. Rather than taking a prescriptive 
approach, USEPA should work with the States to create an incentives-
based framework that could achieve far more, in terms of better data 
and environmental results, than the proposal.
    There are numerous areas where USEPA has exceeded its jurisdiction 
and gone well beyond statutory authorities--chief among them is the 
NPDES program. Where this is the case, State permit programs could face 
gridlock.
    USEPA Actions in Delegated States (Sec. 122.23, 122.24, 122.26, and 
122.27): Proposed Sections 122.23, 24, 26, and 27 are not necessary. 
Inclusion of these provisions would allow USEPA to intervene in a State 
whenever it deems appropriate (to develop a TMDL, issue an expired 
permit, or permit NPSs).There appears to be no statutory authority for 
this intervention. Furthermore, based on the track record of USEPA 
relative to addressing water program issues in non-delegated States, it 
does not seem realistic to assume that this approach would ever work.
    Recommendation.--If a problem exists regarding how a State is 
dealing with permit backlogs, wasteload allocations, offsets or NPS 
management, it should be addressed under NPDES permit delegation 
agreements and current regulations. If USEPA believes that some 
additional language is necessary, the existing regulations should be 
revised to clearly lay out a process that USEPA headquarters and 
regions will follow when these issues arise in States. This process 
should allow the States a clear, but timely, opportunity to discuss 
with USEPA the nature of the problem and to resolve a problem before 
USEPA would actually intervene.
    Interim Period Before TMDL Development and Approval (Sec. 122.4): 
The proposal restricts the discharge from certain new or significantly 
expanded sources in impaired waters, unless a reasonable further 
progress objective is met. This basically means that affected 
discharges must obtain a 1.5: l offset of the new or expanded discharge 
loading. The offset becomes a permit condition and a point source is 
liable for third party failure to achieve an offset. This requirement 
would apply even though a project may have an important watershed 
benefit, which may not achieve the offset requirement (e.g. the 
construction of a municipal sewage treatment facility to eliminate 
existing septic systems, or combined sewer overflows, or where habitat 
restoration is undertaken for an aquatic life use impaired waterbody).
    USEPA has no statutory authority in the Act to impose this 
restriction. The anti-degradation policy relates to the maintenance, 
versus improvement, of water quality. The proposal strains an already 
overburdened NPDES program, significantly taxes point sources and 
requires new administratively complex accounting systems. State efforts 
to address this requirement would divert limited resources (with no 
commensurate environmental gain) from the core activities of developing 
and implementing TMDLs--which will do the most to reach the attainment 
of water quality goals. The proposal would likely encourage location of 
facilities in unimpaired waters, which may be less environmentally 
desirable and in conflict with other Agency initiatives such as 
brownfields and smart growth.
    States agree that continued progress is needed toward achievement 
of WQS before TMDLs are approved and implemented. Trading between point 
and nonpoint sources of pollution may be a useful tool for some States. 
However, it is does not make sense to impose on all States the 
requirement of developing and implementing an offset system directly 
linked to each State's NPDES permit system.
    Recommendation.--In lieu of the approach in Section 1 22.4(i), 
States should be required to develop site-specific and/or watershed-
wide approaches that are consistent with current anti-degradation 
regulations and continued progress toward the achievement of water 
quality goals.
     The requirement for existing dischargers (provided the 
proposed expansion is greater than the ``significant expansion'' 
definition in Section 122.2) who seek to expand their operation should 
be no-net increase in mass-based loading for the pollutant(s) of 
concern in the receiving water.
     New dischargers (provided the discharge meets the ``new 
discharger'' definition in Section 122.2) must achieve instream 
criteria for the pollutant of concern measured at the end-of-the-pipe. 
In those instances where the pollutant is of concern from the 
standpoint of increased loading (e.g. a contributor to nutrient 
impairment, or a bio-accumulative contaminant of concern), there should 
be no-net increase in mass-based loading.
    General Permits Before and After TMDLs Are Developed and Approved 
(Sec. 122.28): USEPA has proposed a few different options to address 
the issue of how offsets would be obtained from sources seeking 
coverage under a general permit. They are based upon different 
approaches for dealing with the notice of intent (NOI) requirement for 
dischargers seeking coverage under a general permit. There are three 
NOI related issues that USEPA addresses somewhat differently in the 3 
general permit options: one relating to how a discharger would know if 
they were in an impaired receiving water area, the second relating to 
whether the discharge contains the pollutant of concern, and the third 
involving how discharge loading information would get from the source 
to the permitting authority. The ultimate question raised is: how could 
the permitting authority determine if an offset would be required to 
meet the reasonable further progress goal?
    General permits are developed and used by States to achieve some 
reasonable administrative efficiency in the control of point source 
discharges. The TMDL program should not negate this goal by basically 
making the general permit process as resource intensive as the process 
of issuing individual permits for all discharges to impaired waters.
    Recommendation.--The third option being considered by USEPA for 
general permittee offsets should be selected regarding potential 
amendments to the general permit regulations, 40 CFR 122.28(b)(2) and 
modified to be consistent with the previous recommendation for 
individual point sources during the interim period. Under this option, 
the general permit would contain alternative sets of requirements 
depending on whether the discharge would be to a waterbody that is 
meeting WQS or is impaired. For discharges into impaired waterbodies, 
some form of requirements should be outlined in order for the general 
permitted source to meet the reasonable further progress objective. The 
overall goal should be to ensure no-net increase in impaired watersheds 
from all sources that could be eligible for coverage under a general 
permit.
    Questions relating to this document should be directed to: Robbi 
Savage (ASIWPCA) [email protected] 202-898-0905 or Linda Eichmiller 
(ASIWPCA) [email protected]; Robbie Roberts (ECOS) 
[email protected] 202-624-3660 or Tom Curtis (ECOS) [email protected]; 
Tony MacDonald (CSO) [email protected] 202-508-3860 or Kerry Kehoe (CSO) 
[email protected]>.
    ECOS Supplemental Comments and Recommendations
                                 ______
                                 
   STATEMENT OF ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION 
                    CONTROL ADMINISTRATORS (ASIWPCA)
                       TMDLS AND RESOURCES NEEDS

    There are currently 21,000 listed waters which, according to USEPA, 
will require 40,000 TMDLs. A waterbody can require several TMDLs (one 
for each pollutant of concern).
    Assuming an even distribution and no additional TMDLs, one TMDL 
would need to be approved each workday by each of the 10 USEPA Regional 
offices in order to complete all of them within 15 years, as envisioned 
in the proposed USEPA regulation.
    Assuming optimistically that ``80 percent savings'' could be 
achieved (by taking advantage of lessons learned, economies of scale, 
and delisting inappropriate waters), States would have to produce (and 
USEPA would have to approve) one TMDL per week in each of the 10 USEPA 
regional offices for the next 15 years. This does not consider the need 
to plan for implementation or conduct additional monitoring.
    Funding for water quality programs overall, and in this instance 
for total maximum daily loads (TMDLs), has been consistently 
inadequate. To develop good defensible TMDLs, the costs for water 
quality monitoring, assessment, TMDL development and implementation 
will experience a tremendous increase at every stage of the process. 
The USEPA's propose regulations would greatly exacerbate the funding 
difficulties already being experienced by the States.
    Because of the complexity of the TMDL process, the sheer number of 
TMDLs required and the intense public interest--to solve the nation's 
water quality problems States need:
     more and better monitoring information,
     increases in personnel,
     more technical capacity, and
     significant stakeholder support for implementation.
    State experience is illustrative:
     For Long Island Sound, over $20 Million was expended 
between 1986-2000 for nitrogen based TMDLs.
     For one creek in Mississippi, the TMDL for dissolved 
oxygen required approximately 5 FTEs over 2 years at a cost of 
$450,000.
     It has taken Texas 5 years, 8 FTEs and $2.2 Million to 
develop one phosphorous TMDL for one waterbody--and the TMDL is not 
finished yet.
     In California, TMDLs of medium complexity require $350,000 
each and complex TMDLs, $1.1 Million. In fiscal year 2000, the State 
estimates the total TMDL work to be $9.1 Million.
     Florida will allocate $1.2 Million and 23.5 FTEs to TMDL 
development and annually needs 12 more FTEs (approximately $1 Million) 
and an additional $700,000.
     Washington needs about 84 FTEs annually to meet current 
requirements, but is able to Provide less than 42.

                        Mid-Range Estimate of Costs to Develop 40,000 TMDLS Over 15 years
----------------------------------------------------------------------------------------------------------------
                                                           Moderate
                                        Simpler           Difficulty            Complex              Total
----------------------------------------------------------------------------------------------------------------
Percent of TMDLs (Number).......  20-30 percent       60-70 percent       10 percent (4,000)  100 percent
                                   (8,000-12,000).     (24,000-28,000).                        (40,000)
Cost Per TMDL...................  $50,000-$200,000..  $300,000-$400,000                       ..................
                                                       $600,000-
                                                       $1,000,000.
                                 -------------------------------------------------------------------------------
    Total.......................  $400,000,000-       $7,200,000,000-     $2,400,000,000-     $10,000,000-
                                   $2,400,000,000.     $11,200,000,000.    $4,000,000,000.     $17,600,000,000
Annual Average (over 15 years)..  ..................  ..................  ..................  $670,000,000-
                                                                                               $1,170,000,000
Average per State Annually......  ..................  ..................  ..................  $13,400,000-423,40
                                                                                               0,000
----------------------------------------------------------------------------------------------------------------

    These estimates do not take into consideration the costs associated 
with:
    (1) any new Federal TMDL requirements,
    (2) additional data collection or monitoring to identify 
impairments and evaluate progress,
    (3) full implementation of TMDLs at the State level,
    (4) other stakeholders who will need to be involved or
    (5) likely event that more than 40,000 TMDLs will be required.
    Recommendation.--To make a meaningful contribution to TMDL 
development: (A) Federal funding under the Clean Water Act needs to at 
least triple, (B) funding for USDA programs would need to increase 
significantly and (C) a higher level of commitment would be needed at 
the State and Local level. For example:

------------------------------------------------------------------------
                                             Current
                                             Federal      Minimum Amount
                                           Funding For    Need Annually
                                            All State      Considering
                                          Water Quality   TMDL Needs [In
                                         Management [In    millions of
                                           millions of       dollars]
                                            dollars]
------------------------------------------------------------------------
Section 106............................            $115            $345
Section 319............................             200             600
------------------------------------------------------------------------

       summary of usepa costing estimates for proposed tmdl rules
    According to USEPA documents assessing the incremental cost of the 
proposed revisions to the water quality management, NPDES Permit and 
Water Quality Standards programs regarding TMDLs, the following costs 
would be incurred to meet requirements. The funding gap in the States' 
ability to carry out the existing TMDL program at a basic level of 
service is not addressed.

------------------------------------------------------------------------
                                   Total Annualized     Allocation Per
                                   Incremental Costs         State
------------------------------------------------------------------------
Listing: State costs*...........  $230,000.00.......  $4,600.00
TMDL Development and Content:     10.1-23.8 Million.  202,000-476,000
 State Cost **.
USEPA burden for the above***...  $18,000 (450        360.00 (9 hours)
                                   hours).
Offset Requirements.............  11.54-42.28         230,800-845.600
                                   Million.
Designation of NPS as Point       5.67-22.96 Million  138,300-560,000
 Sources in NPDES Delegated
 States****.
  Total.........................  27.56-89.28         576,060-1,886,560
                                   Million.
------------------------------------------------------------------------
* USEPA assumes these requirements have no incremental cost: identifying
  threatened waters (determining any adverse water quality trend),
  listing impaired/threatened waters, listing for air deposition,
  listing until standards are attained, developing the listing
  methodology, carrying out the administrative and rulemaking process,
  and undertaking the monitoring and analysis to make and defend these
  determinations.
** Of the 9 elements USEPA defines as the TMDL, they think that only the
  implementation plan will have an incremental cost.
*** Excluding USEPA development of implementation plan, which USEPA
  states is covered below.
**** For the 41 States delegated at the time of the analysis.

                                 ______
                                 
  EXCERPTS OF STATE COMMENTS RE: USEPA PROPOSED REGULATIONS ON TOTAL 
                      MAXIMUM DAILY LOADS [TDMLS]

                                OVERVIEW

    The role of Section 303(d) has been greatly expanded in the 
proposed Regulation. . . . DEP believes that EPA's proposal is over-
inclusive and questions not only the need for expansion but whether or 
not EPA has statutory authority for proposed non-point source 
requirements. . . . Although DEP supports proactive approaches to 
resource protection, it is our opinion that TMDLs are a clumsy tool for 
the protection of habitat and important resources from undetermined 
future impacts. [MA]
    [E]ach time EPA proceeds down this path, it ends up in litigation 
and we all end up at the original starting point. [SD]
    [T]he rule impedes a State's watershed approach rather than 
complements it . . . the Clean Water Action Plan envisions a new, 
collaborative effort to restore and sustain the health of watersheds in 
the nation. . . . [DE]
    [W]e are greatly concerned that EPA's TMDL regulations do not, as 
presently written or as proposed, provide sufficient flexibility (or 
TMDL equivalency) for equating the massive effort of developing the 
Long Island Sound (LIS) comprehensive control management plan with the 
LIS TMDL requirement. Some major lessons have been learned. . . . EPA 
needs to recognize there are very legitimate means to obtain the same 
water quality result that do not involve a formal TMDL process. [CT]
    Changes to the proposal are necessary so that the regulatory tools 
of the Clean Water Act (CWA) can be used effectively and as 
expeditiously as possible to continue the progress that has already 
been accomplished. It sometimes happens that Federal regulations, in 
attempting to clarify and strengthen, impede progress by force fitting 
a particular solution to all problems. [NY]
    There are many pollutants that are not conducive to modeling and 
loading analyses. . . . In these cases, management strategies or an 
adaptive management approach would be a much more effective use of 
Federal, State, and local resources. [NC]
    The degree and detail of the prescribed remedies suggested . . . 
will negate effective TMDL establishment and implementation. . . . EPA 
has the right and duty to expect TMDLs to be developed. . . . However, 
its right to describe the specific details within the TMDL must be 
limited. Effective implementation is a State and local role in 
directing resources on a priority basis to certain geographic areas and 
activities. [KA]
    [The proposed revisions] are needlessly bureaucratic, trapped in an 
archaic regulatory framework, loaded with unrealistic demands, and 
completely unfunded. . . . [They] add many unrealistic expectations to 
the TMDL program, the rationale for which is not clear . . . the 
proposed revisions create a process-laden TMDL program that is not 
workable, goes well beyond the requirements of Section 303(d), and will 
impede ours and other States' efforts to improve water quality. [FL]
    The EPA and the States should work together to refine and enhance 
tools, methods and commitments associated with existing regulations and 
guidance which support the Clean Water Act [e.g., 301, 303, 305(b), 
106, 319], rather than significantly expanding regulations. [TX]
    Point sources are concerned that they will ultimately be 
responsible for any needed reductions because they are regulated, and 
NPS fear they will become regulated. The rules must allow flexibility 
and innovation to bring them together as partners to solve water 
quality problems. [MI]
    No single agency will be capable of achieving water quality 
protection by relying on only its own authorities. . . . What is more, 
to achieve sustainable management will likely require the creativity of 
the private sector in concert with government programs It is the 
outcome that needs to be expressed in the Rule, not the details of the 
programmatic approaches. [CA] EPA has consistently failed to meet . . . 
mandatory timeframes. Consequently, neither States nor dischargers have 
certainty even though they have met all of the requirements of the Act. 
[PA]
    [T]he short timeframes contained in the CWA show the clear 
Congressional intent for a streamlined approval process. . . . If EPA 
adopts an even more prescriptive approach, it is likely to face many 
more situations of itself having to prepare the TMDLs and demonstrate 
compliance with its own rules [WA]

                        POLLUTION VS. POLLUTANT

    The definitions of pollutants and pollution are ambiguous and do 
not specifically address many typical nonpoint source pollutants, such 
as nutrients and sediment. [PA]
    [T]he distinction between pollution and pollutants is confusing and 
raises at least as many issues as it resolves (including conflicts with 
section 101 of the Act). [CA]
    One of the major issues . . . is the implication that ``low flows 
or no flow conditions'' that are clearly acceptable under State water 
right appropriation could or would result in a re-appropriation of 
existing water rights. [UT]
    A definition of natural sources/causes should be provided. [NE]
    [T]he creation of this list which does not provide for followup 
action creates a potential for future litigation. [KA]
    [T]he Preamble . . . describes ``low flow,'' and ``degraded aquatic 
or riparian habitat'' as ``causes of impairment from pollution.'' 
[this] has a significant impact on the scope of the 303(d) list and, as 
such, raises two key concerns: (1) opening an endless round of legal 
debates on the definition of ``pollutants'' and ``pollution'' and (2) 
potential conflicts with Section 101 (g). [OR]
    EPA should . . . exempt the listing of water bodies impaired by 
natural sources of a pollutant, or pollutants from a catastrophic event 
especially when no conceivable water quality program could prevent or 
substantially remediate the effects of nature [TX]

                                LISTING

    DEP believes that the proposed 303(d) listing process is too 
complex and could lead to significant disputes and potentially 
unnecessary litigation thus delaying the implementation measures 
intended by this rule. [MA]
    [Mississippi] fears that EPA will subsequently change the 
interpretation of its regulations to require TMDLs or other permitting 
restrictions on the waters contained in the other, non-statutory 
sections of the proposed 303(d) list. [MS]
    [T]he listing of segments not requiring TMDLs would cause 
unnecessary confusion for the public. [NY]
    EPA is still working . . . to determine the relationship between 
air emissions and mercury accumulation in fish. States should not be 
expected to list and develop TMDLs for these impaired waters until EPA 
provides an approach for doing so. Most likely these TMDLs will be 
multi-State or multi-regional and will require great coordination and 
cooperation. [SC]
    [T]he Chowan River estuary was declared as nutrient sensitive 
waters in 1979, . . . and a plan . . . was enacted in 1982 . . . [and] 
. . . resulted in significant . . . reductions [and] fisheries have 
improved . . . there are questionable benefits about doing a formal 
TMDL in this system. . . . Waters where the proper technical conditions 
do not exist and may be better addressed by a management strategy can 
be placed on another part of the 303(d) list. [NC]
    The draft rule requires States to include the pollutant that is 
causing the impairment, and if the pollutant is unknown, the class of 
pollutant must be included. . . . [This] penalizes States that have 
strong biological monitoring programs. . . . Until we can verify a 
pollutant or class of pollutants with data, we cannot include a problem 
parameter on the 303(d) list. It is important that the proper cause of 
impairment be noted or States will expend many resources developing 
TMDLs for pollutants that will not restore water quality. [NC]
    By including a category on the list of impaired waters called 
``expected to meet WQS . . . for ESA recovery plans and other long-term 
enforceable State, Federal and local water recovery efforts, States 
would be able to provide certainty without first completing a TMDL. 
[WA]
    To consider potential sources of contamination alone as a basis for 
listing a waterbody as impaired or threatened is overkill. . . . The 
reliability of these data bases is unknown. Furthermore, Source Water 
Assessments are potential sources of contamination, not sources of 
contamination.'' [LA]
    [The proposal] would only allow delisting of waters where new data 
indicate the water now meets water quality standards . . . [it does not 
include existing provision that] allow[s] States to delist based on 
administrative errors or flaws in the original analysis. This text is 
extremely important because many waters have been included in previous 
lists without sufficient data. . . . EPA needs to acknowledge that 
States will undoubtedly establish new data sufficiency criteria for 
both listing and delisting. [FL]
    [For biologically impaired waters] . . . developing a TMDL may not 
be the most efficient or effective tool. The preamble . . . indicates 
that States should be able to determine the pollutant within 1 year. 
Without considerable resources put into States monitoring and 
laboratory programs, this cannot be achieved. [NC]
    We expect that the increasingly litigious nature of TMDLs will 
drive the listing process toward more constrained and defined limits. . 
. . The manner in which we deal with impaired waters using TMDLs needs 
to be as efficient as possible so that resource limitations do not 
starve our ability to pursue early intervention and prevention 
alternatives in watersheds that are threatened but not yet impaired The 
Rule should acknowledge that delisting based on alternative or 
functionally equivalent management processes is acceptable. [CA]
    [A] documented decline in water quality in Tier 3 waters should 
trigger an investigation into the cause of the decline rather than the 
development of a TMDL. [NY]
    In light of naturally occurring variation in water quality as a 
result of seasonable and annual variations in hydrologic conditions, 
substantial data would be needed to ascertain that a ``declining trend 
that will result in nonattainment of standards'' exists . . . we 
anticipate that the expansion of the listing requirement [to include 
threatened waters] . . . will lead to numerous debates about what 
constitutes adequate data In view of the overall resource challenge . . 
. it is not appropriate to mandate the listing and development of TMDLs 
for threatened waters. [UT]

                              DATA QUALITY

    Past situations have arisen where EPA has sided with the public 
regarding perceived pollution problems without requiring the public to 
produce any ``real'' data to back-up these claims. This is contrary to 
the more stringent quality assurance/control requirements that are 
imposed upon States. [NE]
    Without clearer guidance, the TMDLs will be challenged from a 
scientific standpoint. States simply cannot maintain mandated timelines 
if they are required to collect additional data or follow elaborate 
protocols for TMDL development that will not be put to some use. [MA]
    T]he proposed rules require the State's water monitoring program to 
be responsible for collecting and analyzing all data, which we do not 
have the resources to do. [It] does not allow discretion to weight data 
based upon quality. Data of poor quality or based upon subjective 
methods could undermine the credibility of listings. [OR]

                     PRIORITIZATION AND SCHEDULING

    We agree that States must be committed to developing and 
implementing TMDLs in order to improve water quality, but it is 
unreasonable for EPA to force States to speculate on schedules for a 
15-year time period when so much is dependent on availability of 
resources and tools. . . . [It] is very unrealistic to expect that 
States can develop all high priority TMDLs in 5 years.'' [SC]
    The remaining waters on our list have a nonpoint source component, 
and are on waters/parameters that will be difficult to address such as 
shellfish closures in our estuaries, nutrient issues in our lakes and 
estuaries, and sediment and fecal coliform loading and biological 
impairment throughout the State Imposing this 15-year timeframe for 
TMDL development may harm States' overall water quality programs. . . . 
[It] also does not provide States with an incentive to expand their 
monitoring program. [NC]
    We believe completing TMDLs to address impaired waters in a timely 
and efficient manner is the goal. . . . The large number of required 
TMDLs and the long schedule ensure unknown problems that will not be 
amenable to inflexible regulatory deadlines. [PA]
    [T]here is . . . a very real potential for conflicts in determining 
303(d)/TMDL priorities, Unified Watershed Assessment priorities, Clean 
Water Act Sec. 319 priorities, and other Federal and State priorities, 
while being expected to share very limited funding for all. [SC]
    Congress intended the TMDL listing process to be a public process. 
. . . EPA is prescribing what is important to the States, exclusive of 
public input. . . . EPA [is] asserting that the public cannot arrive at 
reasonable ranking criteria. [SD]
    [T]he practical implication of giving higher priority to waters 
affecting threatened species or human health is that almost all listed 
waters would require TMDLs within the first 5 years, clearly an 
impossibility. [WA]
    The lack of flexibility afforded the States in assigning priorities 
may mean that efficiencies in grouping TMDLs may be overlooked, or the 
State's ability to develop TMDLs on a watershed basis may be impeded. . 
. . The EPA should allow themselves and the States some justifiable 
relief from certain future litigation for factors that are 
unpredictable at the time the schedules are prepared. [TX]
    The purpose of the schedule should . . . not be considered to be a 
contract with EPA to deliver the specified TMDLs. [CA]

                      COVERAGE OF NONPOINT SOURCES

    ``The proposed revisions represent a significant, unwarranted 
expansion of the regulatory approach to [the nonpoint source] problem. 
. . . There are simply too many potential nonpoint sources of pollution 
to address using traditional regulatory techniques. Furthermore, there 
is too much uncertainty in the relationship between individual nonpoint 
sources and their specific impact on downstream receiving water quality 
to support a water quality-based approach. States certainly will not be 
able to allocate loading to individual nonpoint source discharges or 
monitor the effectiveness of individual pollution control activities. . 
. . Securing industry cooperation is not easy but it is the only way we 
will be able to deal effectively with nonpoint source pollution--and it 
is bearing fruit. . . . The prescriptive approach . . . would prove 
ineffective and serve only to discourage partnerships and cooperation 
[and] seriously undermine the roles of State and local governments in 
watershed management. [FL]
    EPA has no more authority than States do to regulate nonpoint 
sources.'' [SC]
    Watershed management . . . is the appropriate mechanism. . . . 
Unfortunately, the proposed regulations reject this philosophy and 
attempt to impose a Federal mandate on States and by extension, point 
sources, to fix nonpoint issues. This approach is doomed to failure, 
legally, logistically and pragmatically. [KA]
    [T]he nature of NPS pollution together with the problems of legacy 
pollution and episodic climatic events makes the application of 
treatment technologies difficult if not impossible as a solution to NPS 
problems. Relying too heavily on NPDES type solutions creates huge 
inequities in cost and responsibility. The threat of pursuing an 
unbalanced program is that the entire management structure is 
diminished. . . . This is a different role for EPA. . . . It is from 
this role of partner and collaborator that EPA must craft the Rule, not 
from a perspective of overseer. [CA]

              IMPLEMENTATION PLANS AS A COMPONENT OF TMDLS

    EPA is taking the extremely tenuous position that a Federal law 
that does not authorize EPA to conduct command-and-control regulation 
of certain activities and entities somehow requires the States to 
conduct that regulation. This is federalism in reverse. . . . 
Mississippi does not need 2,257 implementation plans. [MS]
    DEP is concerned that by requiring the implementation plan within 
the context of the TMDL technical analysis . . ., disputes about the 
implementation plan could bring the technical analysis to a grinding 
halt. [It] should be incorporated into the State's watershed management 
plans and be considered within the context of other watershed problems 
and priorities. [MA]
    An implementation plan is often a complex product following 
extended interactions among many stakeholders in a watershed. Direct 
Federal Government interference will seriously impede the process by 
reducing or removing the commitment of a locality to steward its 
watershed. In short, local creativity and motivation will be 
permanently stymied, and water quality improvement will be delayed. 
[PA]
    [In] some cases, TMDLs may be complete, yet no source of funding is 
available to implement the NPS reductions needed. States will have two 
choices at this point, do not submit the TMDL to EPA or submit it 
without the implementation plan. Either way, progress toward TMDL 
completion is halted. . . . We suggest EPA acceptance of other 
management plans or strategies such as upgraded Sec. 319 Management 
Plans, National Estuary Management Plans, or State Watershed 
Strategies. [SC]
    Requiring the implementation plan as part of the TMDL can 
significantly lengthen the time it takes States to submit TMDLs. If EPA 
does not approve the TMDL, significant State and local resources would 
have been expended that might not meet the requirements of the final 
approved TMDL. Having an approved TMDL in place will ensure that the 
proper goals are established for the implementation plan . . . there 
will be increased flexibility to States and local stakeholders in 
carrying out the plan. [NC]
    To assume that any given TMDL will describe an immediate solution 
to an impaired situation is erroneous. [KA]
    TNRCC understands the need for the EPA and the public to know 
specifically how water quality standards will be achieved, but [e]ven 
with point sources, implementation as detailed in the NPDES permit is 
approved separately and after TMDL approval. [TX]
    Considering the fact that the implementation plan is dependent on 
the load reduction targets set by the TMDL, the concurrent development 
of the TMDL and the implementation plan is not possible . . . 
implementation plans are being developed on a separate schedule 
according to Delaware's Whole Basin Management process. [DE]
    [W]e believe it is appropriate for EPA to request that 
implementation plans be developed. We believe it is beyond EPA's 
authority to specify the content of these plans. [CA]

                      REQUIRED ELEMENTS OF A TMDL

    [M]any of the minimum elements required by the proposed rule are 
unreasonable for the State to define in the course of developing the 
TMDL. . . . it is simply not realistic to require States to identify 
timelines for activities and implementation efforts which are outside 
our jurisdiction, to identify legal or regulatory controls applicable 
at the local level, or to provide reasonable assurances for activities 
and efforts outside our jurisdiction . . . it is simply not possible to 
mandate nonpoint source controls beyond existing statutory authority. 
The imposition of rigid requirements is antithetical to our desire to 
partner with local stakeholders in an iterative process through the 
watershed approach. DEP recommends that EPA reevaluate the 
reasonableness of each proposed element. [MA]
    TMDLs should be used to establish a relative level of 
responsibility in pollution reduction, but not craft hard and fast 
numeric levels which are to be allocated between point and nonpoint 
sources, or among subcategories of sources. [KS]
    Every pollutant and every waterbody is not going to fall into the 
``l0 element box'' provided in the regulations. Examples include 
interstate or border waters which have pollutant criteria and time 
schedules that differ between neighboring States, or complex pollutants 
such as mercury, which may require a phased approach to TMDL 
development. [MS]
    In many situations a management plan that would not include all 10 
elements may allow improvement in water quality to the point where 
standards are met. This would allow savings of time and effort while 
focusing on improving water quality. [SC]
    TMDL implementation, particularly the decisionmaking on the 
allocation of loads and the burden of non-point source pollution 
reduction among known (and possibly unknown) sources from local land 
uses is appropriately a local or State task, not a matter for 
involvement by the Federal Government. [MA]
    Neither the TNRCC nor the EPA will be successful in adhering to the 
prescriptive requirements given the complexities and uncertainties 
associated with nonpoint source pollutants and the lack of wet weather 
standards [TX]
    The TMDL process must be structured to support defining 
expectations on a watershed scale. In contrast, the proposed Rule moves 
us further toward the notion that ``load limits'' for individual 
chemicals is the basis of TMDL work. [CA]

                         REASONABLE ASSURANCES

    The State may be able to outline the actions required to meet or 
make progress toward meeting the water quality standards . . . but some 
of the required actions may exceed the authority of the Department . . 
. (e.g. land use management and the reduction atmospheric deposition). 
The State may also have difficulty in describing the effectiveness of 
some of the unproven Best Management Practices or other unproven 
actions. . . . A time line for actions beyond the [Department's] scope 
of authority will be difficult to predict. . . . The Department may 
also have a difficult time guaranteeing adequate funding for the 
implementation actions because of uncertainty associated with 
projecting future budgets [NY]
    The expectation of EPA for reasonable assurances to implement and 
achieve TMDL endpoints relies on a clairvoyance never seen in water 
quality management. [KS]
    [There is] not enough flexibility. . . . Reasonable assurance 
should allow for the identification of implementing mechanisms such as 
Oregon's Forest Practices Act, Federal land management plans, State 
agricultural statutes and rules, urban planning requirements, etc., and 
how and when (specific timeframes identified in the TMDL) these 
mechanisms will be modified to meet load allocations . . . we see no 
merit in identifying adequate funding of total cost of implementation, 
since it is nearly impossible to do and is not necessary for EPA 
approval of a TMDL. [OR]
    LDEQ cannot assure that local governments will pass ordinances to 
require management measures for nonpoint source controls. Nor can LDEQ 
assure that any new State laws or regulations will be passed. . . . If 
the State outlines within the NPS Management Plan a step-by-step 
process that it will follow in the implementation of the TMDL at the 
watershed level, does that not constitute a reasonable assurance? [LA]
    [S]tates cannot assure that fecal coliform standards in urban areas 
will be met after all possible controls are put in place. . . . Since 
all States will soon have EPA-approved updated Nonpoint Management 
Plans, we believe this plan should serve as the reasonable assurance as 
well as the implementation plan for TMDLs for waters affected by 
nonpoint sources.'' [SC]
    [T]he State cannot provide the necessary reasonable assurance that 
the control measures will be implemented nor could EPA provide the 
reasonable assurance in the event a TMDL is disapproved and redeveloped 
by EPA. The language in the regulations needs to be toned down to match 
that of the preamble which indicates voluntary measures are suitable 
and can be considered sufficient reasonable assurance. [NE]
    Note that there is no comparable requirement of point sources to 
ensure adequate funding for implementing controls consistent with 
wasteload allocations despite the fact that advanced treatment can be 
extremely expensive. The NPS assurances that include a demonstration of 
adequate funding are not feasible. . . . The best the agencies could do 
is provide assurance that they will strive to maintain funding. [CA]

                        USEPA PERMITTING OF NPS

    [T]he silviculture industry . . . has already made a real 
commitment to the protection of State surface waters through the 
development and implementation of a Silviculture Best Management 
Practices Manual. Given the multitude of individual forestry 
operations, we believe that management of stormwater from silviculture 
activities is best addressed through continued refinement of this 
manual, rather than through the NPDES program. [FL]
    The State fears that the mere threat of a possible NPDES permit 
will discourage private landowners from practicing forest management. 
The threat of a permit could turn hundreds of thousands away from the 
simple and beneficial act of tree planting and reforestation. [[NY]
    [W]e have serious concerns with the potential impact of the 
proposed regulations on the State's Forests and Fish Agreement, which 
was painstakingly negotiated throughout the past 2 years and is now 
State law. . . . EPA's proposal could cause the Agreement to collapse. 
. . . The listing and TMDL programs must allow EPA and the State to 
incorporate this Agreement . . . the application of point source 
controls to silviculture does not need to occur if there is a viable 
and effective State program. [WA]
    If permits were to be issued it would create significant overlaps 
and redundancy and require a very large additional administrative cost. 
It would cloud and confuse the management process and potentially lead 
to significant new litigation. [CA]

                     ANTIDEGRADATION POLICY/OFFSETS

    [I]t is likely that protracted litigation will result, wasting 
precious private, local, State and Federal resources. [NE]
    [T]he States and EPA are clearly not in a position to take on this 
expanded role at this time. [WA]
    The proposed TMDL regulations make no provision for pollutant 
trading. . . . [It] should be universally allowed as a mechanisum to 
promote progress toward meeting an aggregate water quality-based 
pollutant cap. [CT]
    [The] proposal to require offsets in addition to requiring 
permittees to demonstrate that their discharge will not cause or 
contribute to the documented impairment is overly burdensome to 
permitters. LFL]
    [For NPS it] is very difficult to quantify and monitor, and may 
take a number of years to accomplish. . . . Development could be halted 
for years in an area with impaired waters, depending on the weather, 
particularly if a flood occurs which destroys years of successful BMP 
implementation work. This is an untenable situation . . . discharges 
associated with cleanups undertaken as part of the Superfund program or 
otherwise could be precluded in an area of impaired waters.'' [PA]
    This could necessitate monitoring for compliance and having 
alternative limits in place to deal with potential [NPS] failures which 
could significantly slow permit issuance. Requirements of this type 
seem premature until there are more specific regulatory programs for 
nonpoint sources in addition to a better understanding of the 
effectiveness of BMPs.'' [SC]
    By dictating to such large numbers of dischargers that every offset 
must be memorialized in each NPDES permit, the EPA is making such 
trading associations unappealing and unnecessarily rigid. . . . It is 
old school thinking that we must remain command and control regulatory 
agencies [and] it becomes undesirable for our permit writers to modify 
multiple permits many times during the course of a permit cycle. [A] 
legally binding agreement . . . could be referenced by the NPDES permit 
but would not require modification of each permit document. [NC]
    This complex and prescriptive approach will likely conflict with 
existing State antidegradation regulations and trading programs . . . 
the offset provision . . . is inconsistent with the shift toward a more 
comprehensive and equitable approach to improvement of impaired 
waterbodies. . . . The benefits in terms of water quality improvement 
anticipated from the new offset requirement are likely to be small . . 
. permitting agencies would face the challenge . . . in determining 
what constitutes an acceptable offset. [MI]

                            EXPIRED PERMITS

    We believe that EPA review of expired permits is more appropriately 
addressed through the Performance Partnership Agreement. [OR]
    [C]reating expectations in the NPDES rule that EPA will assume more 
permitting responsibilities in Washington will result in less overall 
environmental benefit, not more . . . and delay TMDL implementation. 
[WA]
    The proposed regulation . . . would force the State to abandon a 
reissuance schedule that is effective and works extremely well on a 
watershed basis. . . . Preparing permits for a wasteload allocation is 
complex, and the time needed to prepare draft permits could easily 
exceed the proposed 90-day grace period. . . . Implementing the USEPA 
review within the 90-day window would force the State to draft permits 
without adequate time to establish the allocation process. [MI]

                              MIXING ZONES

    ``The draft regulations eliminate the use of mixing zones in 
impaired waters. This shifts a disproportionate amount of 
responsibility to the permitted discharges to improve the water quality 
of the receiving stream. The policy of utilizing mixing zones should be 
a State decision based on the totality of circumstances.'' [MS]
                                 ______
                                 
STATEMENT OF MR. WARREN E. ARCHEY, MASSACHUSETTS STATE FORESTER, CHIEF 
 OF THE MASSACHUSETTS BUREAU OF FORESTRY, AND CHAIR OF THE NASF WATER 
                          RESOURCES COMMITTEE

    The National Association of State Foresters appreciates the 
opportunity to submit testimony on the U.S. Environmental Protection 
Agency's (EPA) proposed revisions to the National Pollution Discharge 
Elimination System (NPDES) Program and Federal Antidegradation Policy 
in Support of Proposed Revisions to the Water Quality Planning and 
Management Regulation (NPDES rule). The proposed changes in the Total 
Maximum Daily Load and NPDES rules have significant potential to 
disrupt silviculture and forest management on the nation's 337 million 
acres of non-industrial private forest (NIPF) land. The proposal 
represents a fundamental change in the approach EPA has historically 
taken to reducing threats to water quality from nonpoint sources. We 
feel this fundamental change in approach is not justified either by 
statutory authority or the scope of water quality impairments caused by 
silviculture.
    The State Foresters are strongly opposed to the proposed rules on 
three major grounds:
    1. The proposal is a major departure from the historical 
interpretation and implementation of the Clean Water Act, and is not 
supported by statutory authority.
    2. The proposal ignores the relatively minor contribution made by 
forest management to water quality problems nationwide, and threatens 
to disrupt the effective approach taken by the State Foresters and our 
Federal partners to achieve these results.
    3. The proposal will be extraordinarily difficult to implement in 
practice and will result in drastically higher costs for both States 
that must develop TMDL's and landowners and operators who might become 
subject to NPDES permitting requirements.
    The National Association of State Foresters represents the 
directors of the State Forestry agencies from all 50 States, seven U.S. 
territories, and the District of Columbia. We believe that forest 
management is vital to the protection of the nation's water resources, 
and are committed to the goals of the Clean Water Act and to preventing 
water quality impairments of all kinds. We believe that forests, and 
the active management of forests, contribute much more to water quality 
improvement than to water quality impairments. Forestry is part of the 
solution and, in most cases, is not a source of the problem.
    The original Water Pollution Control Act (Federal Clean Water Act) 
and subsequent amendments have consistently recognized and preserved 
the ``primary responsibilities and rights of the States in controlling 
water pollution.'' The redefinition of silvicultural activities as 
point sources of pollution and the removal of the silvicultural 
regulatory exemption under the proposed NPDES rule, thus allowing 
silviculture to be permitted under the NPDES, are open and unjustified 
attempts on the part of the EPA to usurp control from the States. 
Further, and without good reason, the proposed change suggests that 
silvicultural activities represent a substantial nationwide NPS 
problem. EPA's own figures tell a much different story.
    The State Foresters are opposed to EPA's proposal to remove the 
categorical exclusion of silvicultural activities from the definition 
of point source pollution. EPA's attempts to regulate silviculture 
activities under the NPDES permitting are scientifically unjustified, 
highly disproportionate with regard to other land uses, and a radical 
departure from the historical interpretation and implementation of the 
Federal Clean Water Act. In short, State Foresters recommend a 
retraction of EPA's proposed rule.

                  SHIFT FROM HISTORICAL INTERPRETATION

    The re-designation of all silvicultural activities as point sources 
of pollution, making all forestry practices potentially subject to 
NPDES permitting, is a drastic departure from 27 years of statutory 
interpretation, case law, and regulatory implementation.
    EPA's claim of authority to regulate silviculture in the proposed 
rule does not withstand the scrutiny of historical interpretation. 
Congress specifically created the provisions under Section 319, through 
the 1987 amendments to the Clean Water Act, to address nonpoint source 
water quality concerns. State Foresters believe that Section 319 
contains the proper and intended authority granted to EPA for NPS 
controls, not the thin rationale EPA is claiming under the stormwater 
provisions (40 CFR 122.26(b)(14)(x). Programs and assistance available 
under Section 319 enable the States to proactively address NPS problems 
in a flexible framework and timely manner that a permitting process 
would not allow.
    We want to stress that efforts to fully fund the Section 319 
program have only recently been stepped up and that precious little 
Section 319 money has been made available for control of silvicultural 
NPS pollution. We strongly support EPA's proposed increases in funding 
for Section 319, and we would hope that a concerted effort would be 
made by EPA to work more proactively with the State Foresters and the 
Forest Service to ensure that prevention of silvicultural NPS pollution 
is emphasized in that program. We also urge the committee to review our 
proposal for a Watershed Forestry Initiative within the USDA Forest 
Service to accelerate the progress being made on forestry NPS control 
(attached).

                     BENEFITS OF FOREST MANAGEMENT

    Forestry can contribute more to water pollution prevention and 
clean up, than to water pollution problems. Besides helping to mitigate 
and reduce NPS water quality impairment from other land use practices, 
active forest management actually encourages beneficial land uses and 
activities that can improve water quality such as reforestation and 
afforestation. Simply stated, getting more trees into the ground will 
be better for water quality. Getting landowners to reforest and/or 
aforest their land should be a primary mechanism in improving water 
quality. The proposed NPDES rule acts as a disincentive for landowners 
to get involved in forest management. It increases the likelihood that 
the landowner will choose another land use activity with increased 
water pollution characteristics such as agriculture or development. 
Positive incentives need to be provided for landowners to reforest and/
or aforest their lands, not create regulations and programs that push 
the landowner away from planting trees.
    Energies should be put into programs and services that are 
voluntary and incentive based, the kinds that State Foresters have been 
delivering to the more than nine million non-industrial private forest 
landowners for over 80 years with proven success. This is reflected in 
the National Water Quality Inventory reports [Clean Water Act 305(b) 
lists] that are delivered to Congress every 2 years. They show a 
diminishing role for silviculture in impairments of rivers and streams 
over the past decade. Silviculture does not even appear on the list of 
seven contributors to river and stream impairments in the EPA's latest 
release of the biennial report (1996).
    Best Management Practices.--State Foresters are, and have been for 
many years, involved in the development of nonpoint source (NPS) water 
pollution controls and plans. We have led by taking a preventive and 
proactive, rather than a restorative or reactive, role to water quality 
impairments from silviculture activities. This involvement has led to 
developing practices and procedures for both preventing and reducing 
NPS risks, commonly referred to as Best Management Practices (BMPs). 
All States with significant forest operations have silvicultural NPS 
control programs that rely on BMPs for results.
    Forestry BMPs are continually being refined in many ways to help 
make them more effective and enforceable. Refinements include making 
BMPs directly enforceable in connection with required plans and 
permits; utilizing ``bad actor'' designations; making compliance with 
BMPs a defense to a regulatory violation; making BMPs the basis for an 
exemption from a regulatory program; and making BMPs a defense to 
nuisance or liability actions. Continual refinements include logger 
licensing and certification programs which train field operators about 
BMP implementation. The crux is that States are already working to make 
existing laws and standards more consistent and comprehensive (Stuart, 
1996).
    These types of creative BMP revisions have helped to improve 
implementation to levels of 85-95 percent and above (Ice/Shepard, 
1999). Implementation rates should only improve as time passes. This is 
particularly true as more and more logger/landowner monitoring, 
education, and training sessions come online, and forest certification 
and performance standard systems such as those set up by the Forest 
Stewardship Council and the American Forest & Paper Association 
(Sustainable Forestry Initiative) become more accepted and mainstream. 
State Foresters believe that BMP implementation accomplished by an 
informed and willing audience is the key to successful reduction of 
silvicultural NPS water pollution. We are already seeing evidence of 
this.
    Proof lies in the 305(b) reports. Report trends show that 
silviculture is contributing to a diminishing fraction of polluted 
miles along rivers and streams. In fact, silviculture did not even show 
up on the list of water pollutant contributors in the latest version of 
the 305(b) reports (EPA, 1996). With forests covering 737 million acres 
of the United States (National Research Council, 1998), it is important 
to note that forest management is reported in the 305(b) reports to 
contribute to only a small fraction of the impaired rivers and streams. 
The logical conclusion is that the use of BMPs in forestry operations 
is having a positive impact on water quality. Our own studies bear this 
out. Whereas 40 States reported localized pollution problems from 
silviculture in 1982, only twenty-four reported the same in 1996 
(Stuart, 1996).

       IMPLEMENTATION: MORE COSTLY AND CUMBERSOME THAN EPA THINKS

    The EPA claims that they are seeking a regulatory ``backstop'' 
through the NPDES rule, so that bad actors in impaired watersheds will 
come under a regulatory framework. However, as written, the proposed 
rules lead us to believe that it would lead, in many cases, to a 
patchwork regulatory framework, where EPA field offices would have 
discretion to set up regulatory programs in some watersheds, while 
States would retain authority over voluntary programs in others. We 
believe that most States have adequate bad actor provisions and 
enforcement mechanisms, and we are reviewing our own State programs to 
confirm this. However, it is interesting to note that the States with 
the highest number of impaired stream miles (Washington, Oregon, and 
California) due to silviculture, forest practices are already regulated 
through State forest practices acts. We have serious reservations about 
what the proposed rule will mean in States such as these and in other 
States where the legislatures have acted to mitigate the impact of 
silviculture on water quality. Will EPA demand more than is currently 
required under State law?
    This sends the message that the EPA does not believe that States 
are doing a good job, or they will not be able to do a good job to 
reduce silvicultural related NPS pollution in the future. As a result, 
the ``backstop'' undermines State good faith efforts. There is good 
reason to believe that this EPA action might divert resources that will 
limit State capability and potentially refocus State efforts into 
activities with unproven results. A ``top-down'' approach, like the one 
being proposed by the EPA, will only alienate the partners needed to 
achieve this continued success.
    Below is the summary table taken from the EPA's cost analysis 
related to implementation of the silvicultural provisions of the 
proposed NPDES rule (Environomics, 1999).

------------------------------------------------------------------------
                                    Annualized Cost     No. of Entities
       Proposed Provision             ($ Million)     Affected  Annually
------------------------------------------------------------------------
Designating Silvicultural
 Operations Under NPDES:.
Cost for the silviculture         3.45--12.93.......  ..................
 industry.
Administrative costs to Federal   0.27-0.28.........  ..................
 and State governments.
                                 ---------------------------------------
    Subtotal....................  3.72--13.22.......  613-1,225
Annualized compliance costs for   0.36 percent to     368-735
 small logging firms.              0.67 percent of
                                   their annual
                                   revenues.
Annualized compliance costs for   0.27-0.50 percent   3\ of the clean water we 
need for recreation and support of fish and wildlife habitats as well 
as the drinking water supply for millions of Americans. In addition to 
environmental benefits, these private forestlands also produce over 50 
percent of the nation's wood and paper products.
    Forests are increasingly being removed and fragmented by land-use 
changes, placing stress on forests and their watersheds. These losses 
of forest affect more than our quality of life. In the Baltimore-
Washington region alone, tree loss over the last 25 years has increased 
runoff nearly 20 percent, causing flooding and eroding streams and 
costing local governments over $1 billion in treatment costs. 
Increasingly, the conservation, restoration and stewardship of private 
forestlands is viewed as crucial to securing watershed health and 
sustaining it in the future.

A Watershed Forestry Initiative
    Recent national actions such as the Clean Water Action Plan, the 
USDA Forest Service Natural Resource Agenda, and EPA's proposed Total 
Maximum Daily Load program revisions have brought new focus on the need 
to work at the watershed level, create opportunities for partnerships 
and encourage greater community participation in solving water and 
natural resource problems.
    Historic funding levels for water related work through Cooperative 
Forestry programs have not met this challenge. An initiative is 
proposed to expand stewardship activities to prevent and address water 
quality and watershed issues in forested watersheds. The Initiative 
would implement activities in two main areas:

Program Components
    Watershed and Clean Water Grants.--Through grants to States, 
communities, non-profit groups and landowners, the Forest Service and 
State Foresters will implement critical watershed protection, 
restoration and stewardship projects.
     use trees and forests as solutions to water quality 
problems in urban and agricultural areas
     protect drinking water supplies
     demonstrate the value of trees and forests to watershed 
health and condition
     restore fisheries and enhance waterfowl and other wildlife 
habitat
     promote forest and watershed protection through community-
based planning and action
     build new partnerships with State, local and non-profit 
organizations
     complete watershed scale water quality improvement and 
forest conservation plans
     restore stream side forests and establish riparian 
vegetative buffers to improve water quality
    Watershed Coordinators/Enhanced Forest Resource & Watershed 
Planning.--Successful watershed planning and management depends on good 
information and the ability to deliver. Coordinators would be a focal 
point for integrating forestry programs across mixed ownerships and 
building Federal and State capacity to deliver existing cooperative 
programs on a priority watershed basis. The bottom line is that groups 
involved in assessing watershed condition and developing solutions need 
better forest resource information. Coordinators would help to:
     build new partnerships, while nurturing and strengthening 
existing partnerships, at the State and local level,
     provide technical guidance for water quality protection 
and restoration,
     develop collaborative watershed projects which can address 
critical conservation, restoration or stewardship needs in priority 
areas,
     provide enhanced forest resource data and support for 
State and local watershed planning efforts,
     work directly with the non-industrial private forest 
landowner on-the-ground to improve water quality,
     support information needs for State Unified Watershed 
Assessments, water quality standards development, impaired water lists 
(303(d) lists), National Water Quality Inventory data (305(b) list), 
Total Maximum Daily Load calculation and nonpoint source pollution 
control plans,
     provide forest resource information to local watershed 
councils, and
     support Sustainable Forestry Criteria and Indicators and 
Index of Watershed Indicators.

Partners
    Moving forests and forestry into a more proactive role in the 
protection and restoration of watersheds, water quality, and important 
habitats like riparian areas and wetlands, provides the opportunity for 
a wide range of partnerships. Cooperative Forestry has the established 
delivery system and partnerships with States to effectively deliver 
this program and nurture partnerships that are needed to effectively 
improve the water quality of forested runoff. Potential supporting 
partners, amongst others, include: National Association of State 
Foresters, National Association of Conservation Districts, Western, and 
Southern Governor's Associations, Issak Walton League, Ducks Unlimited, 
The Nature Conservancy, Defenders of Wildlife, Wildlife Management 
Institute and Environmental Protection Agency.

Outcomes
    Maintaining water quality and restoring degraded streams and 
watersheds on private lands requires new and expanded roles for State 
Foresters and Cooperative Forestry. Millions of private forest 
landowners and thousands of communities are ready to take action. 
Through this initiative new partnerships between Federal and State 
officials, forest managers, and local communities and organizations can 
be realized. These efforts will result in:
     restoration of thousands of miles of stream and critical 
fish habitat,
     protection of the drinking water supply for millions of 
Americans,
     rehabilitation of degraded urban and agricultural 
watersheds, and
     appreciation of the full value of trees and forests in 
maintaining healthy watersheds and clean water in the future.
Budget

------------------------------------------------------------------------
                                                          Budget  (In
                   Program Actions                        millions of
                                                            dollars)
------------------------------------------------------------------------
Watershed and Clean Water Grants.....................               15.0
Watershed Coordinators/Planning......................                5.0
                                                      ------------------
    Total Budget.....................................              20.00
------------------------------------------------------------------------

                                 ______
                                 
        STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL 
                               LAW CENTER

                              INTRODUCTION

    Good afternoon, Mr. Chairman and members of the subcommittee. My 
name is Rick Parrish. I am an attorney with the Southern Environmental 
Law Center, a non-profit environmental advocacy group that works to 
protect public health and the environment in a six-State portion of the 
Southeast. I appreciate the opportunity to discuss with you today EPA's 
recent efforts to revitalize the Clean Water Act's watershed 
restoration or ``Total Maximum Daily Load'' (TMDL) program, especially 
the impacts and costs of proposed rules on State and local governments 
and communities.
    EPA's proposed TMDL rules will certainly have an impact on State 
and local governments and communities. There will undoubtedly be some 
additional costs imposed upon State and local governments by the 
proposed rules, but I believe the vast majority of costs attributed to 
these rules would more accurately be assigned to the TMDL rules that 
have been in place for the last 15 years and almost universally ignored 
by State and local governments, which raises the interesting question 
whether we have learned anything from that history of conscious 
disregard of the TMDL program. More importantly from my point of view, 
the proposed rules would have an enormous beneficial impact on 
communities across the country, financial and otherwise, as we begin to 
take the steps that are necessary to restore the worst polluted waters 
in the nation. Before looking at some of the costs and benefits of the 
proposed rule, I would like to highlight the following fundamental 
areas of general agreement about the TMDL program.
     Clean water and healthy aquatic ecosystems are of vital 
concern to the American public, now as in 1972 when the Clean Water Act 
was passed.
     Almost 28 years after passage of the Clean Water Act, 
nearly 40 percent of the waters that are assessed nationwide remain 
impaired, that is, too polluted for fishing, swimming, and other 
designated or actual uses, including aquatic habitat.
     States and EPA estimate that more than 20,000 water body 
segments are impaired, often by more than one pollutant, with the 
result that 40,000 TMDL-based clean-up plans will be required.
     State monitoring programs cover only about one-third of 
our nation's waters. Even though new or better data will likely show 
that some currently listed waters do not, in fact, need TMDLs, the 
number of impaired waters nationwide is likely to increase as water 
quality monitoring programs expand in coverage.
     The watershed approach to water quality planning and 
management is generally recognized as the most equitable and efficient 
method of protecting and restoring water quality, and the TMDL process 
is generally considered the technical backbone of that watershed 
approach.
     The TMDL program as currently designed is not succeeding 
in restoring water quality in impaired waters.
     We cannot afford to wait for perfect data and a perfect 
understanding of the interaction between pollutants and the aquatic 
ecosystem before taking steps to correct serious water pollution 
problems.
     The States and EPA generally agree that non-point source 
activities are responsible for a majority of the impaired waters 
nationwide.
     There is general agreement that additional funding will be 
required at the local, State, and Federal level for the TMDL program to 
succeed nationwide. At the same time, there will likely be added costs 
if cleanups are delayed further, both in terms of the eventual expense 
of restoring water quality and the opportunity costs associated with 
reduced use, enjoyment and productivity of polluted waters.
    The overriding goal of the Clean Water Act was ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.'' While much progress has been made, especially with 
regard to the discharge of pollution from pipes and other point 
sources, the sad truth is that 40 percent of our nation's waters are 
still considered too polluted to be used for their intended purposes, 
including fishing, swimming, drinking, or as aquatic habitat. Section 
303(d) of the Clean Water Act contains the one program specifically 
designed to deal with these impaired waters, the TMDL program. Section 
303(d) requires States to identify their worst polluted waters and 
develop cleanup plans based on the calculation of the Total Maximum 
Daily Loads of particular pollutants that the water can accommodate. If 
States fail in these tasks, the duties revert to EPA. Designed to give 
States the primary role in cleaning up polluted waters, the TMDL 
program was largely ignored by States and EPA alike for over 20 years. 
In recent years, partly as a result of a wave of lawsuits filed by 
environmental groups, EPA has begun taking steps to implement the TMDL 
program to clean up the worst polluted waters in the country.
    In my view, the single most significant step EPA has taken to 
revitalize the TMDL program is the proposal of rules that, for the most 
part, clarify and strengthen the requirements of the TMDL program. I 
believe that the heart of the proposed rules, the requirement that an 
implementation plan be developed as part of the TMDL itself, has the 
best chance of converting this watershed restoration initiative from a 
program marked by neglect and wasted effort to one marked by 
productivity and accomplishment over the years to come.

                     EARLY FAILURE OF TMDL PROGRAM

    The TMDL program lay dormant until the late 1980's when 
environmentalists starting filing citizen suits against EPA for 
allowing States to ignore their obligations to prepare lists of 
impaired waters and TMDL-based watershed recovery plans under 
Sec. 303(d). An Illinois case, Scott v. City of Hammond, established 
the principle that the State's failure to submit lists and TMDLs 
triggered EPA's mandatory duty to step into the void. At this point, 
EPA has been sued in over half the States in the country for allowing 
the TMDL program to languish. In all but one such case (Minnesota), 
environmentalists have either won in court or negotiated a favorable 
settlement.
    At the same time the litigation was occurring, State and Federal 
regulators were moving toward a watershed approach to water quality 
planning and management. EPA had issued TMDL regulations in 1985, 
modified them in 1992 to require State submittal of 303(d) lists every 
other year, and produced a series of programmatic guidance documents 
and policy statements throughout the 1990's to clarify how States 
should compile their 303(d) lists and develop their TMDL programs. 
Finally, in 1996, EPA convened a formal advisory committee to recommend 
ways to strengthen the TMDL program generally.

                   ADVISORY COMMITTEE RECOMMENDATIONS

    In 1996, EPA formed an advisory committee under the Federal 
Advisory Committee Act (FACA) composed of 20 members representing point 
source and non-point source industries, State, local, and tribal 
governments, the environmental community and others. This TMDL advisory 
committee, on which I served, issued a report in the summer of 1998 
containing over 150 recommendations on ways to strengthen and improve 
the TMDL program. Most of those recommendations were based on consensus 
agreement among the members of the committee, but others did not 
receive the support of the full committee, and there were several 
important issues on which the committee could not agree at all.
    Foremost among the issues with the full support of the advisory 
committee was the notion that implementation was the key to the 
eventual success of the TMDL-based watershed restoration program. The 
advisory committee was unanimous in the sense that without 
implementation, TMDLs were hardly worth the time and effort.
    I believe the most important lesson to be derived from the efforts 
of EPA's TMDL advisory committee was that representatives of the 
various constituencies most affected by and concerned with the TMDL 
program agreed, for the most part, on a series of recommendations for 
strengthening that program. No single member agreed with all 
recommendations, and there were important issues left unresolved. But 
this was an important demonstration of how government, industry, 
environmentalists and others could work together to develop better ways 
of solving long-standing and important environmental problems.

             SOME COSTS AND BENEFITS OF THE PROPOSED RULES

    In August of last year, EPA finally published in the Federal 
Register proposed rules intended to clarify and strengthen the TMDL 
program. The proposed rules retain the fundamental approaches of the 
TMDL program--especially the primary role reserved to the States--but 
add significant detail about how States should manage the program. The 
one change that has brought the most attention is the proposed 
requirement of an implementation plan as part of the TMDL-based 
watershed 
recovery plan that States submit to EPA for review and approval. While 
the environmental community is not of one mind about the merits of the 
proposed rules, I 
believe the inclusion of an implementation plan alone could have the 
effect of converting what has largely been a paper exercise to one that 
has some chance of actually succeeding in cleaning up the nation's 
worst polluted waters.
    In light of intense criticism from virtually all quarters, I think 
it's safe to say that no constituency is satisfied with EPA's proposed 
rules. Indeed, some consider that a sign that EPA has struck a 
reasonable balance among competing interests, though the only real 
measure of these rules is whether they would speed the clean-up our 
nation's polluted waters. Environmentalists generally are concerned 
that the schedules are too long and contain no deadlines; that the 
offset provision, despite some strengths, contains loopholes that could 
render it meaningless and ineffective; that the failure to require 
TMDLs for waters impaired only by ``pollution,'' such as conditions of 
reduced instream flow, condemns such waters to continued degradation; 
and that the petition process is unnecessary and destructive of what 
little trust has been earned on this issue. State governments, even 
those with sincere commitments to cleaning up polluted waters, are 
concerned about the resources necessary to develop and implement TMDLs, 
including for increased monitoring and other data collection. Point 
source industries and municipalities are concerned that they will have 
to shoulder an unfair burden by reducing their discharges even further 
than they have already, and with the potential impact that limiting new 
or additional discharges might have on economic growth and development. 
Non-point sources fear the introduction of Federal regulatory controls, 
though EPA has gone to great lengths to explain that no such additional 
controls are proposed, with the possible exception for previously 
unregulated point source discharges from forestry operations.
    It is understandable that State and local governments are concerned 
with the cost of complying with EPA's proposed rules. Yet, if States 
had taken seriously their responsibility to restore polluted waters 
under the TMDL program over the past 15-20 years, they would not be 
facing the burden of developing and implementing cleanup plans for all 
such waters over the coming 10-15 years. Even now, the problem may be 
more an issue of priorities than availability of funding. Indeed, if 
States paid as much attention to restoring polluted waters as they do 
to permitting additional discharges, we would be significantly farther 
down the path to cleanup.
    Despite this resistance from most States, EPA is proposing 
significant increases in Federal funding for State TMDL programs 
(additional $45 million) and State non-point source pollution control 
programs (additional $50 million) in its fiscal year 2001 budget 
primarily to meet these new obligations. This is a considerable boost 
to a program that would still allow up to 15 years for States to 
develop watershed recovery plans.
    While the cost of restoring polluted waters may be high, the cost 
of further inaction and additional delay--cost to the economy, cost to 
the resource--will be even higher. And we should not ignore the equally 
real, if more difficult to determine, benefits of cleaning up polluted 
waters--again, benefits to the economy and to the resource. In the end, 
however, we are left with many more questions than answers about the 
fiscal impact of water pollution and the proposed TMDL rules, questions 
such as the following:
     What is the cost to State and local governments of 
restricting development on polluted waterways?
     What are the costs of polluted waters to the tourism and 
recreation industries?
     What is the cost to the multi-billion dollar sport fishing 
industry in the upper Midwest of fisheries contaminated by mercury and 
other pollutants?
     What is the cost in terms of public health of drinking 
water contaminated with cryptosporidium, swimming in waters 
contaminated with fecal coliform bacteria, or consuming fish 
contaminated with persistent bioaccumulative chemicals?
     What is the value of an endangered salmon species in the 
northwest, or an endangered freshwater mussel in the southeast, that 
might be saved through steps taken partly as a result of the TMDL 
program?
     What is clean water worth?
    Virtually all parties, including EPA, are concerned about having 
the resources to develop and implement TMDLs across the nation. 
Proposed increases in EPA's TMDL budget and other Federal funds for 
non-point source programs will certainly help. I believe, however, that 
Congress will have to recognize that the restoration of water quality 
across this country, so strongly supported by the American people, is 
unlikely to be achieved without this additional funding and perhaps 
more.
    We can be absolutely certain of one thing, however. If we wait 
until adequate resources are identified and committed to the task of 
restoring our worst polluted waters, we will never succeed. And that, 
Mr. Chairman, is simply unacceptable to the vast majority of Americans 
who still want our dirtiest waters cleaned up and maintained as clean, 
healthy rivers, lakes and streams.

                               CONCLUSION

    I believe that EPA's proposed rules represent the best chance of 
moving this program forward. Without implementation plans, TMDLs have 
proven largely to be a waste of taxpayer money. More importantly, they 
have been largely ineffective in restoring our most polluted waters to 
healthy condition. Our best hope for attaining the lofty goals of the 
1972 Clean Water Act, restoring the chemical, physical, and biological 
integrity of our nation's waters, is in moving forward with a TMDL 
program that has some chance of actually succeeding. EPA's proposed 
rules represent a significant step in that direction.
                                 ______
                                 
            STATEMENT OF AMERICAN SOCIETY OF CIVIL ENGINEERS

    Mr. Chairman and members of the subcommittee: The American Society 
of Civil Engineers (ASCE) is pleased to submit this statement for the 
record on the projected revisions to the water quality planning and 
management regulation governing Total Maximum Daily Loads (TMDLs) that 
was proposed by the Environmental Protection Agency (EPA) last year. 
See Proposed Revisions to the Water Quality Planning and Management 
Regulation, 64 Fed. Reg. 46,011 (Aug. 23, 1999) (to be codified at 40 
C.F.R. Part 130). ASCE remains deeply concerned about the protracted 
implementation schedule in the proposed regulation, believing it to be 
in violation of the Clean Water Act.
    ASCE was founded in 1852 and is the country's oldest national civil 
engineering organization. It represents more than 123,000 civil 
engineers in private practice, government, industry and academia who 
are dedicated to the advancement of the science and profession of civil 
engineering.
    The Society's diverse members are directly concerned with the 
proposed changes to the water quality planning and management 
regulations in their professional practice areas. Among those areas are 
environmental engineering, water resources engineering and water 
resources planning and management. ASCE is a non-profit educational and 
professional society organized under part 1.501 (c)(3) of the Internal 
Revenue Service rules.

                 A. STATUTORY AND REGULATORY BACKGROUND

    The Federal Water Pollution Control Act, or Clean Water Act, is the 
principal law governing pollution in the nation's streams, lakes, and 
estuaries. 33 U.S.C.A. 1251-1387 (West 2000). The Act has three major 
elements. First, States must set water quality standards to protect 
``designated uses'' of certain bodies of water; the standards then are 
used to effluent limits for individual sources. Next, the Federal 
Government is required to set industrywide, technology-based effluent 
standards for dischargers. Finally, all dischargers must obtain a 
permit issued by the Federal Government or authorized States that 
specifies discharge limits under the National Pollutant Discharge 
Elimination System (NPDES) program. The discharge limits essentially 
are the stricter of the water-quality-based limit and the technology-
based limit.
    The Act's regulatory provisions impose progressively more stringent 
requirements on industries and cities in order to meet the statutory 
goal of zero discharge of pollutants, and it authorizes Federal 
financial assistance for municipal wastewater treatment construction.
    Industries were to meet pollution control limits first by use of 
``Best Practicable Technology'' and later by improved ``Best Available 
Technology'' (BAT). Cities were to achieve secondary treatment of 
municipal wastewater (roughly 85 percent removal of conventional 
wastes), or better if needed to meet water quality standards. 
Sometimes, however, the use of BATs does not result in the reduction of 
pollutant loads in a body of water. In those cases, the Act requires 
the EPA and the States to establish the ``total maximum daily load'' 
for a body of water.
    All of the Act's programs are administered by the EPA, while State 
and local governments have major day-to-day responsibility for 
implementing the law. More than 40 States currently are authorized to 
issue NPDES permits. Nevertheless, various Federal agencies continue to 
invest heavily in the pollution-control programs under the Clean Water 
Act. ``[T]otal Federal annual spending for nonpoint-related programs 
remained relatively constant from fiscal year 1994 through fiscal year 
1998 at about $3 billion, although obligations among some programs 
increased significantly during this period.'' U.S. General Accounting 
Office, Water Quality: Federal Role in Addressing and Contributing to 
Nonpoint Source Pollution (1999).
    Section 303(d) of the Act, 33 U.S.C.A. 1313(d), requires States to 
identify pollution-impaired water segments and develop ``total maximum 
daily loads'' (TMDLs) that set the maximum amount of pollution that a 
water body can receive without violating water quality standards. The 
Act imposes a mandate on the States to identify waters that cannot meet 
Federal effluent limitations and to establish TMDLs for pollutants 
identified by the EPA. If a State fails to identify its impaired waters 
or establish the required TMDLs, the EPA must do so. The first listed 
waters and TMDLs were due to the EPA in mid-1979, or 180 days after the 
Agency published the first list of pollutants regulated under section 
303(d).
    A TMDL includes a quantitative assessment of water quality 
problems, pollution sources, and pollution reductions needed to restore 
and protect a river, stream, or lake. TMDLs may address all pollution 
sources, including point sources such as sewage or industrial plant 
discharges, nonpoint sources, such as runoff from roads, farm fields, 
and forests, and naturally occurring sources, such as runoff from 
undisturbed lands. If a State fails to develop TMDLs, the EPA is 
required under section 303(d) to develop a priority list for the State 
and establish a Federal TMDL for the impaired body of water.
    The TMDL program, in effect, helps the various government agencies 
to identify impaired waters and, after the application of BATs fails to 
control pollutants, establish priorities for their protection through 
the formation of plans to manage excess pollutants entering the 
affected bodies of water. The EPA's water programs and their State 
counterparts are increasingly emphasizing watershed and water quality-
based assessment and integrated analysis of point and nonpoint sources. 
Better Assessment Science Integrating Point and Nonpoint Sources 
(BASINS) is a [modeling] system developed to meet the needs of . . . 
agencies. It integrates a geographic information system (GIS), national 
watershed data, and state-of-the-art environmental assessment and 
modeling tools into one convenient package. Originally released in 
September 1996, BASINS addresses three objectives: (1) to facilitate 
examination of environmental information, (2) to provide an integrated 
watershed and modeling framework, and (3) to support analysis of point 
and nonpoint source management alternatives. It supports the 
development of TMDLs, which require a watershed-based approach that 
integrates both point and nonpoint sources.

                          U.S. EPA, BASINS 2.0

    Section 305(b) requires States to prepare a water quality inventory 
every 2 years to document the status of water bodies that have been 
assessed. Under section 304(1), States identified all surface waters 
adversely affected by toxic (65 classes of compounds), conventional 
(such as BOD, total suspended solids, fecal coliform, and oil and 
grease), and nonconventional (such as ammonia, chlorine, and iron) 
pollutants from both point and nonpoint sources. Under section 314(a), 
States identify publicly owned lakes for which uses are known to be 
impaired by point and nonpoint sources.
    The TMDL program is technically complex and largely dependent upon 
the States for implementation. When TMDLs are established, wastewater 
treatment plants for communities and industry may need new technology. 
States and EPA enforce the TMDLs through permits which include the 
pollutant limits and a schedule for compliance. For waters impaired by 
nonpoint source runoff, because there are no Federal controls over 
these sources under the Clean Water Act, the primary implementation 
measures will be State-run nonpoint source management programs coupled 
with State, local, and Federal land management programs and 
authorities. See 33 U.S.C.A. 1329.
    Most States have lacked the money to do TMDL analyses, which 
involve a complex assessment of point and nonpoint sources and 
mathematical modeling. Moreover, the cost of reducing the pollutants 
may become a factor. `` [A] large number of the nation's waters cannot 
meet water quality standards with point-source control alone. In some 
cases, it may be cost prohibitive to reduce point-source loading 
further.'' Carl W. Chen et al., Decision Support System for Total 
Maximum Daily Load, 125 J. of Envtl. Engineering 653 (1999).
    Meanwhile, the EPA has been reluctant to interfere with the States 
to move the TMDL program along The Agency also appears to have lacked 
the resources to do the TMDL analyses itself. Congressional 
commentators therefore have noted critically that there has been little 
implementation by the EPA or the States of the TMDL provision since 
1979.
    Illustrative of this point is the fact that in recent years, 
national and local environmental groups have filed more than 20 
lawsuits against EPA, claiming the Agency has failed to fulfill its 
Clean Water Act requirements. The EPA is concerned about diverting 
agency resources from other high-priority water quality activities in 
order to meet the courts' orders, especially if other lawsuits yield 
similar results. In October 1996, the EPA created an advisory committee 
to solicit advice on the TMDL implementation problem. Recommendations 
from the advisory committee, received in July 1998, form much of the 
basis for the current TMDL rulemaking.
    In 1997, the EPA Office of Water issued guidelines to the Agency's 
regional administrators in an effort to give greater impetus to the 
TMDL program. According to those guidelines, ``If a State fails to meet 
its obligations under section 303(d), [the EPA regional offices] will 
need to step in. However, it is my goal that every State will succeed 
in fully meeting the requirements of section 303(d) and taking the 
needed action to implement approved TMDLs.'' Memorandum from Robert 
Perciasepe, Assistant Administrator for Water, to Regional 
Administrators, New Policies for Establishing and Implementing Total 
Maximum Daily Loads (TMDLs) (Aug. 8, 1997) (emphasis in original) .
    Despite the issues and lack of progress in implementing the 1972 
requirements, it is not clear at this point whether Congress will 
reauthorize the Clean Water Act in the 106th Congress in order to 
address the TMDL matters. But it is, of course, entirely up to Congress 
to determine which changes, if any, are needed in the current TMDL 
program.

           B. PROPOSED REVISIONS TO THE PART 130 REGULATIONS

    The EPA carries out the TMDL program under the Part 130 regulations 
(Water Quality Planning and Management). 40 C.F.R. Part 130. The 
overall purpose of the current water quality management program is to 
establish Federal policy requirements for water quality planning, 
management and implementation under the Clean Water Act. The Agency 
intends the management process is to be ``a dynamic one, in which 
requirements and emphases vary over time.'' The TMDL program creates a 
process for identifying water-quality limited segments that require 
waste-load allocations under the NPDES permit program.
    ``A TMDL is established to attain or maintain the water quality 
standard for a specific pollutant that has been identified as the cause 
of an impairment or threat to a water body.'' See 64 Fed. Reg. at 
46,030. States must set their TMDLs ``at levels necessary to meet water 
quality standards[,] with seasonal variations and a margin of safety 
that takes into account any lack of knowledge concerning the 
relationship between pollutant loads and water quality.'' See id.
    In the proposed rule, the EPA announces nine major changes to the 
current regulatory scheme under Part 130. The proposal would:
     Revise definitions of ``TMDL,'' ``wasteload allocation,'' 
and ``load allocation.''
     Amend definitions of ``impaired water body,'' ``threatened 
water body,'' ``pollution,'' ``pollutant,'' ``reasonable assurance'' 
and ``water body'' that clarify EPA's existing interpretation of these 
terms.
     Add a new requirement for a more comprehensive list and a 
new format for the list.
     Add a new requirement that States, territories and 
authorized Tribes establish and submit schedules for establishing TMDLs 
for all water bodies impaired or threatened by pollutants.
     Establish a new requirement that the listing methodologies 
developed by States, territories and authorized Tribes be more 
specific, subject to public review, and submitted to EPA on January 31 
of every second, fourth or fifth year.
     Create a possible change in the listing cycle so that 
States, territories and authorized Tribes submit lists to EPA on 
October 1 of every second, fourth or fifth year beginning in the year 
2000.
     Make it clear that TMDLs include 10 specific elements.
     Create a new requirement for an implementation plan as a 
required element of a TMDL.
     Establish new public participation requirements.
    On the same date that the Agency proposed to amend the TMDL 
regulation, the EPA proposed a regulation to revise the National 
Pollutant Discharge Elimination System (NPDES) program to strengthen 
the overall Federal water quality management program. See Revisions to 
the National Pollutant Discharge Elimination System Program and Federal 
Antidegradation Policy in Support of Revisions to the Water Quality 
Planning and Management Regulation, 64 Fed. Reg. 46,058 (Aug. 23, 1999) 
(to be codified at 40 C.F.R. parts 122, 123, 124 and 131). This 
regulation would allow the Agency to object to a State's decision to 
allow an NPDES permit to lapse for discharges into impaired bodies of 
water with or without TMDLs. Specifically, the rule would spell out the 
Agency's ``discretionary authority to object to, and reissue, if 
necessary, State-issued expired and administratively continued permits 
authorizing discharges into water bodies in the absence of an EPA[-
]approved or [-]established TMDL.'' Likewise, it also would grant the 
Agency the discretion to issue NPDES permits for discharges into 
impaired bodies of water with established TMDLs. It needs to be 
stressed that the second proposed rule would not mandate a particular 
EPA regulatory response under the first proposed rule in the absence of 
specific TMDLs for discrete bodies of water in any State, regardless of 
the legal status of a discharge permit for given pollutants, however.
    Additionally, the EPA has attempted in the August 23 proposed 
rulemaking to get at the remaining sources of pollution under the Act's 
section 319 management program for Nonpoint sources of pollution. These 
sources include agricultural runoff, which the Agency has identified in 
its most recent 305(b) report to Congress as one of the last remaining 
sources of unregulated pollution in the nation's lakes and rivers. See 
U.S. Environmental Protection Agency, The Quality of Our Nation's 
Waters: Water Quality Report to Congress (1998).
    Critical to this effort to move TMDLs into the area of watershed 
protection is section 304(f), which requires the EPA to issue 
guidelines on how to identify and evaluate the extent of Nonpoint 
sources of pollutants and methods to control them, including pollution 
resulting from ``agricultural and silvicultural activities, including 
run off from fields and crop and forest lands;  . . .'' See 33 U.S.C.A. 
1314(f) (emphasis added). Thus, farmers, ranchers and other sources of 
Nonpoint discharges may be asked to use alternative methods in their 
operations to prevent fertilizers and pesticides from reaching rivers. 
See Congressional Research Service, Clean Water Act and TMDLs (1997). 
It is for this reason that ``[t]he TMDL issue has been controversial, 
in part because of requirements and costs now facing States to 
implement this provision of the law. Industries, cities, farmers, and 
others may be required to use new pollution controls to meet TMDL 
requirements.'' See Congressional Research Service, Clean Water Act 
Reauthorization (1999).

   C. THE PROPOSED TMDL RULE WOULD DELAY THE COMPLETION OF THE TMDL 
       PROCESS FOR MANY YEARS IN VIOLATION OF THE CLEAN WATER ACT

    One of ASCE's principal criticisms of the current TMDL program is 
the slowness with which States have developed their TMDLs. ASCE 
believes that the August 23 proposed rule on TMDLs would exacerbate the 
problem of long delays in the implementation of the program. The fact 
that the EPA might invoke the requirements of the second proposed 
rulemaking of August 23 and issue NPDES permits for those impaired 
waters where no TMDLs have been established in effect bypassing the 
requirements of section 303(d) could not solve the Agency's long-term 
problem caused by the lack of the lawful TMDLs, which are required by 
the Act. Nor could it provide any greater protection for human health 
and the environment. From a purely environmental perspective, the TMDLs 
are designed to help identify impaired waters in the first place: if 
there are no TMDLs, how is the EPA to know where to begin to issue or 
reissue permits? Without TMDLs there is no way for Federal or State 
regulators to set priorities or even to know which water bodies are 
most seriously impaired.
    The EPA, then, must return to section 303(d) to establish rational 
answers to the national problem of impaired water bodies. We wish to 
stress that the requirements of section 303(d) are imperative, not 
discretionary; the section creates a positive duty which the States 
and, in their failure to act, the EPA were bound to obey expeditiously. 
The passage of nearly 30 years does not lessen the force of the 
mandate.
    Although a great many routine administrative matters are committed 
to an agency's discretion, including a limited power to not enforce 
existing regulations, ``Congress did not set agencies free to disregard 
legislative direction in the statutory scheme that the agency 
administers.'' Heckler v. Chaney, 470 U.S. 821, 833 (1985). A reviewing 
court, moreover, will uphold the deadlines established in an act of 
Congress absent specific language in the law granting an agency the 
flexibility to postpone a congressionally mandated regulatory 
requirement.
    The mandatory nature of the TMDL requirements is beyond dispute. 
See, e.g., Scott v. Hammond, 741 F.2d 992, 998 (7th Cir. 1984) (holding 
that the Clean Water Act ``undoubtedly imposes mandatory duties on both 
the States and the EPA''); Alaska Center for the Environment v. Reilly, 
762 F. Supp. 1422, 1429 (1991) (``Section 303(d) expressly requires the 
EPA to step into the States' shoes if their TMDL submissions or lists 
of water quality limited segments are inadequate'') aff'd sub nom. 
Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 
1994); Defenders of Wildlife v. Browner, 909 F. Supp. 1342 (1995) 
(same); Natural Resources Defense Council v. Fox, 909 F. Supp. 153 
(1995) (same); Sierra Club v. Hankinson, 939 F. Supp. 865 (1996) 
(same); Raymond Profitt Foundation v. EPA, 930 F. Supp. 1088 (1996) 
(same); and Idaho Conservation League v. Browner, 968 F. Supp. 546 
(1997) (same). See also Idaho Sportsmen's Coalition v. Browner, 951 F. 
Supp. 962 (1996) (the ``extreme slowness'' of the EPA's proposed 25-
year schedule for implementing TMDLs in Idaho would violate the Clean 
Water Act). EPA is under court order via consent decrees in at least 18 
cases to complete TMDLs in 16 States. See U.S. Environmental Protection 
Agency, Total Maximum Daily Load Program, Overview of TMDL Cases (9/1/
99).
    The failure of the States to complete the program has been the 
subject of protracted litigation in Georgia, New York, California, 
Alaska and other States. Ironically, it was the States that urged 
adoption of the TMDL requirements, see Oliver A. Houck, TMDLs IV: The 
Final Frontier, 29 envtl. l. rep. 10,469 (1999). In addition, as one 
critic has noted,

          ``[T]he States have badly breached their responsibilities to 
        identify waters that remain polluted and then to promulgate 
        total maximum daily loads (TMDLs) for these waters under 303(d) 
        of the Act. The TMDL process is a crucial mechanism for 
        ratcheting down levels of pollution in watercourses that fail 
        to meet water quality standards despite the application of 
        technology-based controls to point sources. The goal of the 
        TMDL process is the central goal of the Clean Water Act to 
        deliver truly clean water to Americans by identifying the 
        additional controls that must yet be made to point and nonpoint 
        sources in order to render waters suitable for uses such as 
        fishing and swimming. Despite the importance of the TMDL 
        process and the plain obligations it imposes on the States, the 
        States have generally sought to avoid their duties in this area 
        in an ignoble way. As one recent commentator put it, ` The 
        States have been all in favor of the responsibility for 
        regulating water pollution through their water quality 
        standards, right up to the point that they had to do it.' ''

    Drew Caputo, A Job Half Finished: the Clean Water Act After 25 
Years, 27 Envtl. L. Rep. 10,574 (1997) (emphasis added).
    Moreover, the States' failure to carry out the TMDL program 
regardless of the reasons for their dereliction does not free the EPA 
from the responsibility of filling the gap left by the States in the 
regulatory scheme established by Congress. To fail to do so would be to 
allow the States the power to invalidate an act of Congress through 
inaction. Yet despite the abundant case law, the unambiguous mandate of 
section 303(d) and the fact that the EPA knows the TMDL program has 
moved at a ``historically low'' pace, the Agency's 1997 guidelines and 
proposed rule can only delay things further. The guidelines could well 
push the completion of the program even farther into the future by 
asking not requiring the States to develop their TMDLs over the next 13 
years, beginning with program submissions in 1998. See Perciasepe 
Memorandum, supra (``These State schedules should be expeditious and 
normally extend from eight to 13 years in length, but could be shorter 
or slightly longer depending on State-specific factors.'').
    The TMDL rulemaking may well compound the problem of implementation 
for the future in other ways as well. Significantly, the proposed rule 
would remove from the Part 130 regulations the current EPA-imposed 
requirement that States identify the bodies of water for which TMDLs 
will be established in the 2 years immediately following a decision to 
set priority rankings for their impaired waters. Instead, the Agency 
would substitute a requirement that the States establish TMDL schedules 
``as expeditious[ly] as practicable,'' but not less than 15 years after 
the August 23 rule is promulgated. 64 Fed. Reg. at 46,027. Finally, the 
EPA ``recommends'' that States should make it their ``goal'' to 
establish TMDLs for their impaired waters within 5 years of the 
effective date of the revised Part 130 standards. Taken together, these 
steps do not appear to be picking up the TMDL program pace appreciably.
    Therefore, despite the States' admittedly poor showing over the 
past 20 years, we continue to believe that the Agency should keep 
strict compliance deadlines in the Part 130 regulations. We are 
concerned that by eliminating the current deadlines in Part 130 and by 
authorizing a further slowdown of up to 13 years (as in the 1997 
guidance) the EPA is sending the wrong signal to the States, 
potentially letting them off the Act's strict water-quality hook for 
many years and providing them with a legal excuse for additional, 
wholly unnecessary regulatory delays. Assuming that all States were to 
take until 2011 to complete their TMDL calculations, that would mean 
the program would not be in place nationwide until nearly 40 years 
after the TMDL requirement was enacted in 1972 and more than 30 years 
after the 1979 deadline triggered under section 303(d)(2).
    Nothing in the Clean Water Act supports the proposition that 
Congress authorized or intended for the EPA or the States to delay the 
implementation of the TMDL program for decades after enactment. Indeed, 
the language of section 303 requires the States to adopt water quality 
standards, which must precede the adoption of TMDLs, 6 months after 
enactment, i.e., no later than April 1973. 33 U.S.C.A. 1313(a)(3)(A). 
With the science and engineering readily available to complete the 
program rapidly, there is no technical reason for continued delays.
    For the foregoing reasons, we believe that Congress must make 
certain that the Agency establishes and enforces a strict schedule for 
the States to complete the implementation of their TMDL programs. We 
suggest that Congress amend the Clean Water Act to ensure that the 
Agency's recommended 5-year ``goal'' proposed on August 23 be in the 
form of a new, mandatory TMDL deadline. At the same time, we believe 
that Congress must conduct vigorous oversight of the TMDL program to 
guarantee that the EPA moves expeditiously to adopt State TMDLs in the 
absence of rapid Federal or State implementation of the proposed 
rulemaking.

 D. THE EPA IS CORRECTLY ATTEMPTING TO USE THE TMDL PROGRAM TO REDUCE 
   THE DISCHARGE OF POLLUTANTS INTO WATERSHEDS FROM NONPOINT SOURCES

    The goal of the Clean Water Act is ``to restore and maintain the 
chemical, physical and biological integrity of the Nation's waters.'' 
33 U.S.C.A. 1251(a) (West 1999). One of the Act's stated objectives is 
to eliminate ``the discharge of toxic pollutants in toxic amounts.'' 
Id. 1251(a)(3). Significantly for the present rulemaking, the Act 
specifically authorizes ``programs for the control of nonpoint sources 
of pollution'' and requires them to be developed as expeditiously as 
possible. Id. 125(a)(7).
    As noted above, the EPA intends to use the TMDL program to focus on 
the management of point and nonpoint sources of pollution throughout a 
given watershed.
    The TMDL specifies the amount of a pollutant that needs to be 
reduced so that the waterbody will achieve State water quality 
standards, allocates reductions in the pollutant or pollutants among 
the sources in a watershed, and provides a guide to taking on-the-
ground actions needed to restore a waterbody. TMDLs can focus on a 
small segment of a waterbody or on a group of waters in a larger 
watershed.
    See Review of the Environmental Protection Agency's New 
Agricultural and Silvicultural Regulatory Programs: Hearing Before the 
Subcomm. on Department Operations, Oversight, Nutrition and Forestry of 
the House Comm. on Agriculture, 106th Congress 83 (1999) (statement of 
J. Charles Fox, Assistant Administrator for Water, Environmental 
Protection Agency) (emphasis added) (hereinafter House Agriculture 
Oversight Hearing).
    Indeed, the Agency makes it clear that all potential pollutant 
sources already are subject to the TMDL program under current EPA Part 
130 regulations. ``TMDLs are established [under current rules] for 
water body and pollutant combinations for water bodies impaired by 
point sources, nonpoint sources, or a combination of point and nonpoint 
sources.'' 64 Fed. Reg. at 46,013 (emphasis added). To date, no 
nonpoint sources have been regulated as point sources under the 
National Pollutant Discharge Elimination System (NPDES). The August 23 
proposal merely would extend some wasteload allocations for impaired 
water bodies to apply to a single point source or group of point 
sources that already are subject to a general NPDES permit. Id. at 
46,016. These aggregate allocations covering permitted point sources 
are a sensible solution to the problem of managing runoff from multiple 
sources, none of which is easily identifiable by itself. This is a long 
way from saying that nonpoint sources would themselves be subject to an 
NPDES permit, however. Indeed, nonpoint sources will be subject to 
nothing more stringent than nonregulatory, cost-effective ``best 
management practices'' (BMPs) to prevent runoff in the first place, 
according to the Agency's August 23 proposed revisions to water quality 
management plans. See 64 Fed. Reg. at 46,052-46,053. Possible BMP 
prevention measures could include curbs, dikes, water bars, vegetative 
ground cover to prevent erosion, rotational grazing, crop rotation, in-
paddock livestock feeding and watering, better calculation of 
fertilizer and pesticide needs, ditch stabilization and a number of 
other affordable runoff control means.
    Nevertheless, critics in Congress, the States and industry have 
attacked this BMP approach as wrong, arguing that the EPA may not 
extend the TMDL program under the State-delegated powers in section 319 
to reach any nonpoint sources in order to moderate the impact of runoff 
from farms and forests, no matter how indirect or benign the proposed 
regulatory regime. See, e.g., House Agriculture Oversight Hearing at 7 
(statement of Rep. Goodlatte) (``I sincerely doubt that the EPA will be 
able to prove . . . that they have [sic] the statutory authority to 
implement the regulations we are reviewing today.''); at 18 (statement 
of John Barrett, Texas cotton farmer); and at 25 (statement of Arthur 
R. Nash Jr., Deputy Director, Michigan Department of Environmental 
Quality) (criticizing the TMDL proposal for failing to establish a 
Federal-State partnership). It has even been argued that the EPA may 
not identify those waters that have been impaired by nonpoint sources. 
Id. at 106.
    Such criticisms are unwarranted. One of the central purposes of the 
Act is to control nonpoint sources of pollution from whatever source. 
To be sure, section 319 of the Act, added by Congress in 1987, requires 
the States to implement management programs for nonpoint sources of 
pollution. The Federal presence under section 319 is weak and almost 
entirely passive. To make matters worse, Congress chronically has 
underfunded the section 319 programs. See Note, Agriculture, Nonpoint 
Source Pollution, and Regulatory Control: The Clean Water Act's Bleak 
Present and Future, 20 harv. envtl. l. rev. 515, 526 (1996). 
Nevertheless, Congress recognized the need for some action to regulate 
nonpoint sources. Thus, a key element of the section 319 management 
program is the information developed under the water quality standards 
provisions of section 303. And of course the law requires the Agency 
not the States to issue guidelines on the best way to identify nonpoint 
sources of pollution. See 33 U.S.C.A. 1314(f). One type of pollutant 
that is specifically to be regulated under the Act is ``agricultural 
waste discharged into water.'' Id. at 1362(6).
    ASCE believes that one should not read section 319 in isolation in 
order to shield nonpoint sources from BMPs or to prevent the EPA from 
otherwise seeking to ease the worst effects of nonpoint sources of 
pollution based upon a watershedwide approach under the section 303(d) 
TMDL program. It is a well-established maxim of statutory 
interpretation that every act of Congress must be read in its entirety 
in order to give effect to a coherent regulatory scheme. Acts of 
Congress ``should not be read as a series of unrelated and isolated 
provisions.'' Gustafson v. Alloyd Co. 513 U.S. 561, 570 (1995). Read in 
their entirety, the provisions of the Act require the EPA to oversee 
the implementation of State pollution control measures for nonpoint 
sources and to intervene aggressively in their absence.
    In any case, the States cannot now plausibly argue that their 
failure over the past 30 years to adopt the protective watershed 
protection measures required under section 303 somehow entitles them to 
greater deference to deal with agricultural runoff and other nonpoint 
pollution sources under their section 319 authority. The State 
management programs under section 319 are highly dependent upon the 
information developed in the section 303 planning process. If the 
Federal-State partnership has been threatened at all, it has been 
jeopardized by the States' delinquency in implementing the TMDL program 
enacted in 1972.

E. THE EPA SHOULD IMPROVE THE SCIENTIFIC VALIDITY OF TMDLS BY ADOPTING 
A NEW METHOD OF CALCULATING THE LOADS IN ORDER TO PROMOTE THEIR USE ON                                    A  WATERSHED BASIS

    ASCE supports the use of a watershed management program to protect 
critical water bodies. The Society believes the EPA should consider the 
adoption of a decision support system to calculate total maximum daily 
loads and agrees that the Agency should redefine them in order to 
identify what a TMDL is and what it must contain. We believe these 
changes would provide greater regulatory clarity, encourage the use of 
TMDLs and ensure greater consistency among States, territories and 
authorized Tribes in the use of TMDLs so that the program may protect 
entire watersheds where necessary and possible. See Michael M. Wenig, 
How ``Total'' Are ``Total Maximum Daily Loads''? Legal Issues Regarding 
the Scope of Watershed-Based Pollution Control Under the Clean Water 
Act, 12 Nl. Envtl. 1.j. 87 (1998) (concluding that the TMDLs process 
``should be pursued to the fullest practical extent because it provides 
a technical, flexible framework for addressing cumulative sources of 
watershed harm; in short, it promotes an ecosystem approach'').
    ASCE strongly supports basin-wide water resources management. The 
Society encourages all government agencies charged with implementing 
the Clean Water Act to manage and regulate water on a watershed basis. 
ASCE further supports integrating programs and goals across political 
boundaries. Any Federal regulations defining the goals and standards 
for watershed management should permit flexibility and accommodate 
regional needs, however.
    In order to provide greater scientific certainty, ASCE strongly 
recommends that the Agency consider the adoption of a new method for 
calculating TMDLs. We believe that EPA and the States ought to follow a 
decision support system that goes beyond the established watershed 
modeling program the BASINS model now used by the government to analyze 
a watershed approach to TMDL development.
    BASINS is strictly a simulation model, which provides no guidance 
on how to calculate TMDLs. Following the traditional command and 
control approach, BASINS is used by regulatory agencies to make 
analyses and decisions on TMDLs. The new environmental policy, however, 
requires a change in the way TMDLs are determined and implemented. . . 
. As an alternative to BASINS, a decision support system has been 
developed hat goes beyond a watershed model. It includes a road map for 
stakeholders to follow and provides scientific information along the 
way. Chen, supra, at 653 (emphasis added).
    A dynamic watershed simulation model such as is contained in the 
Watershed Analysis Risk Management Framework (WARMF) described in the 
recent literature accounts for meteorology, point-source loads, 
reservoir flow release, flow diversion data and, significantly for this 
rulemaking, air quality. Integration of the effects of air pollution in 
the calculation of TMDLS for impaired water bodies is important, given 
the EPA's acknowledged lack of hard data on this problem. See 64 Fed. 
Reg. at 46,022 (``EPA recognizes that data, analytical approaches and 
models to establish TMDLs for pollutants originating from air 
deposition may not be immediately available, especially for pollutants 
subject to long range transport in the atmosphere.'')
    The dynamic watershed simulation model within the WARMF is superior 
to the BASINS model. It is easy to adapt the model to any ``real'' 
river basin and check the results against observed data because all 
observed data were collected under dynamic conditions. WARMF allows its 
users to specify the intended use and the criteria to be met. It then 
calculates the TMDL to protect the intended use of the water body. The 
model's graphical user interface makes it easy for stakeholders, not 
just technical experts, to run and to understand. In addition, WARMF 
can calculate multiple possible TMDL solutions, allowing stakeholders 
to negotiate the most acceptable solution. The model has an algorithm 
to evaluate pollution trading between point and nonpoint source loads. 
Each of these features is necessary in order to calculate the proper 
TMDLs under the EPA's guidelines.
    In addition to its scientific and engineering capabilities, the 
WARMF would aid in the calculation of TMDLs to a greater degree of 
certainty and ensure the adoption of a consensus watershed management 
plan.
    Mr. Chairman, that concludes our prepared remarks. We would be 
pleased to answer questions from the subcommittee. If you have any 
questions, please contact Michael Charles of our Washington Office at 
(202) 789-2200 or by E-mail at [email protected].
                                 ______
                                 
          STATEMENT OF THE INTERSTATE COUNCIL ON WATER POLICY
  
  On behalf of the Interstate Council on Water Policy (ICWP), an 
organization representing States and interstate water resource 
management organizations across the country, we would like to submit 
the following testimony for the record for the March 1, 2000 Fisheries, 
Wildlife and Water Subcommittee hearing on the Total Maximum Daily Load 
regulations proposed on August 23, 1999.
    ICWP is committed to seeking more comprehensive and coordinated 
approaches to water management that integrate quality and quantity 
concerns, ground as well as surface water management, and economic and 
environmental values. It is within this context that the following 
testimony and comments on the rulemaking have been developed.

    FLEXIBILITY AND THE STATE ROLE IN IMPLEMENTING THE PROGRAM MUST 
                            BE STRENGTHENED

    In order for the TMDL program to be effective, flexibility and 
consistency with existing statutory authority is critical in the 
nonpoint source arena and must be provided in the final TMDL 
regulations. The final rulemaking needs to adequately reflect the 
partnership established with the States under the 1972 Clean Water Act. 
It is important to note that the Federal Water Pollution Control Act 
(section 101(b) gave States ``the primary responsibility and rights . . 
. to prevent, eliminate, and reduce pollution.'' As proposed, the 
regulations do not reflect this leadership role for States outlined by 
Congress. State and interstate organizations must be afforded greater 
flexibility and resources to support their important role in 
implementing this critical program.
    If the TMDL program, in fact, utilizes a watershed approach to 
reduce pollution, then State and interstate organizations need to have 
the primary role in implementing this program. Since those entities are 
better suited to that role than the Federal Government, it is critical 
that sufficient flexibility be granted to States and interstate 
organizations, in order to account for and address local site-specific 
factors which deviate from the national perspective.

         CURRENT FUNDING IS INADEQUATE TO CARRY OUT THE PROGRAM

    ICWP is very concerned about the lack of sufficient funding to 
support the far-reaching efforts required in the proposed rule. 
Resources are already strained at the State, interstate and local 
levels with the onset of new water quality regulations, with the most 
recent being the NPDES Phase II stormwater program.
    ICWP supports the conclusions reached by other State organizations 
that funding for Section 106 and 319 program assistance must triple to 
carry out the proposed TMDL effort. If this program is to be a national 
priority, then adequate funding must be provided at the Federal level 
for implementation. There also needs to be a strong recognition of the 
important role that interstate river basin organizations will assume in 
this program and EPA should direct adequate funding to such 
organizations so they may carry out this role.
    flexibility needs to be provided for tmdls on interstate waters
    Lack of flexibility provided to the States to develop TMDLs is 
particularly evident in the rulemaking's approach to addressing 
interstate waterbodies.
    ICWP urges U.S. EPA to recognize the role that interstate 
organizations can play in implementing the TMDL program. Most existing 
interstate river basin commissions are set up on a watershed basis and 
provide an excellent means for coordinating water quality efforts among 
political jurisdictions sharing the watershed. The TMDL rulemaking 
provides an opportunity for EPA to urge States to work through 
interstate river basin organizations to secure agreement on management 
approaches and maintain consistency across State lines. Interstates 
provide a good forum for conflict resolution.
    Although EPA notes that it considered a variety of options for 
establishing TMDLs on interstate waterbodies, the proposed rulemaking 
simply states that EPA may establish TMDLs for such waterbodies. ICWP 
instead urges that the agency take a more flexible approach to the 
issue, which urges interstate cooperation which will ultimately make 
the program more successful in such waters.
    The States should decide whether or not EPA should become directly 
involved in the development of TMDLs on interstate waters. Some 
interstate water issues may be relatively simple and could easily be 
resolved by the neighbor States. In more complex situations, States 
should have the option of requesting EPA's involvement or utilizing 
interstate river basin organizations to develop the TMDLs. This 
flexibility for interstate water issues needs to be an integral part of 
the TMDL regulations.
    States and interstate organizations are ready and willing to take 
up the challenge of implementing Section 303(d). However, their ability 
to establish and implement TMDLs is threatened by the heavily 
prescriptive process expected by EPA and espoused by these regulations. 
If the Federal Government expects restoration of water quality in 
impaired waters over the next decade, it would be better served by 
directing sufficient financial resources to the States and interstate 
organizations, maintaining a flexible framework in addressing complex 
pollutant impairments and investing time to learn the variations in 
water and water quality across the nation, rather than expect 
conformity to a Federal template.
    ICWP's membership includes many interstate river basin 
organizations, who would be prepared to discuss this issue in further 
detail with subcommittee staff.
    ICWP appreciates this opportunity to submit this testimony and 
urges that you contact Executive Director Susan Gilson at 202-218-4133 
if you would like further clarification on any of these issues.
                                 ______
                                 
     STATEMENT OF THE NATIONAL ASSOCIATION OF FLOOD AND STORMWATER 
                          MANAGEMENT AGENCIES

    The National Association of Flood and Stormwater Management 
Agencies (NAFSMA) appreciates the opportunity to provide testimony on 
the Total Maximum Daily Load rulemaking proposed by the U.S. 
Environmental Protection Agency on August 23, 1999. NAFSMA represents 
more than 100 local and State flood control and stormwater management 
agencies and has a strong interest in the development of this program. 
Our membership has been committed over the last two decades to provide 
for recognition of the unique nature of municipal stormwater 
discharges.
    NAFSMA appreciates the subcommittee's interest in this broad-
reaching national program.
    Rainwater falling on cities and flowing through the local storm 
drainage system and eventually into streams, rivers and lakes is a non-
point source pollution problem that differs fundamentally from point 
sources of discharge such as public sewage treatment plant effluent. 
EPA officials have made it clear to NAFSMA members that the proposed 
TMDL regulations address storm water because storm water is regulated 
as a point source and permitted under the National Pollutant Discharge 
Elimination System (NPDES).
    NAFSMA is very concerned that this proposed TMDL regulation fails 
to recognize the original intent of Congress to address stormwater 
differently than traditional point sources. The existing Clean Water 
Act requires the reduction of pollutants in municipal stormwater to the 
maximum extent practicable. The law does not require numeric effluent 
limitations for stormwater, an issue recently upheld in stormwater 
litigation in the Ninth Circuit Court of Appeals (see below).
lack of statutory authority for key elements of the proposed regulation
    We support the goals of the Clean Water Act which have led and will 
continue to lead to improvement of the nation's waters and acknowledge 
the position in which U.S. EPA has been placed by litigation to publish 
these regulations. However, our membership is concerned about a number 
of key provisions in this regulatory proposal and questions whether the 
agency has the statutory authority to issue some of these requirements. 
Among these questionable requirements is the listing of threatened and 
impaired waterbodies and the requirement for offsets included in the 
NPDES section of the rulemaking.

   NEED FOR INCLUSION OF APPROPRIATE LOCAL GOVERNMENTS IN THE PROCESS

    States must have the dominant role in the TMDL program and must 
involve local governments in the TMDL process at the option of the 
appropriate local jurisdiction. NAFSMA urges that the final regulations 
outline a role for local officials or their representatives in the 
review of the methodologies and ultimately the TMDLs affecting 
waterbodies within their jurisdictions. This being said, however, 
NAFSMA members do support the States' role in setting the TMDLs and 
feel that EPA's authority to approve the TMDLs should be limited. CWA 
Section 303(d)(2) only requires EPA to approve or disapprove the 
State's list and load; it does not provide for a detailed review of the 
State's implementation process.

   LACK OF RECOGNITION OF THE UNIQUE NATURE OF STORMWATER DISCHARGES

    In general, there appears to be a lack of recognition in the TMDL 
regulations that stormwater discharges are by their nature different 
than point source discharges. EPA representatives have asserted that 
under the TMDL program, municipal stormwater discharges are considered 
a point source. This issue in itself leads to a number of technical 
issues related to the stormwater regulation. For example, the question 
of how to determine load reductions for stormwater will be critical and 
extremely complex.
    Another related technical issue is the need to allow beneficial use 
attainability analyses (UAA) as a requirement of the TMDL process and 
submittal when requested by the appropriate local jurisdictions. 
Specifically the UAAs should be added as an element in Section 
130.33(b)(1) of the proposed rule (which addresses the minimum elements 
of a TMDL submittal to EPA). The inclusion of the UAA analyses will 
help to ensure that TMDLs are based on best available science, 
consistent with community values and are historically sustainable. The 
inappropriate identification of attainable uses would have a severe 
impact on the success of the TMDL program and will lead to unachievable 
allocations.

                TMDLS NEED TO BE BASED ON SOUND SCIENCE

    Although NAFSMA supports State primacy in the TMDL program, our 
membership supports regulations leading to thorough scientific/peer 
review of the methodologies used by the States in developing the TMDLs. 
The TMDLs developed by the States must be based on sound science and 
must meet acceptable scientific standards.

   LANGUAGE NEEDS TO BE INCLUDED TO REFLECT THE NINTH CIRCUIT COURT 
                     DECISION ON STORMWATER PERMITS

    As proposed in August 1999, the regulation fails to include 
language reflecting the September 15, 1999 court opinion issued by the 
U.S. Court of Appeals for the Ninth Circuit on a case involving five 
Arizona NPDES stormwater permits (Case No. 98-71080). In this case the 
Ninth Circuit ruled that by statute, stormwater discharges are to be 
subject to the maximum extent practicable goal, rather than strictly 
being subject to numeric effluent limits which apply to traditional 
point sources. Under this court ruling, the application of a TMDL with 
a numeric effluent limit for stormwater discharges would be 
inappropriate. The NAFSMA membership urges that municipal stormwater 
systems be classified as nonpoint sources subject to best management 
practices as called for by Congress under section 402(p) of the Clean 
Water Act.

                      LOCAL DISPROPORTIONATE SHARE

    If EPA continues to consider urban runoff as a point source, NAFSMA 
is very concerned that municipalities will be allocated a 
disproportionate amount of TMDLs. Atmospheric deposition issues will 
lead to an even greater burden for the TMDL program being placed on 
localities. Local governments shouldn't be held responsible for 
atmospheric deposition over which they have no control. This approach, 
as well as holding the local governments responsible for other nonpoint 
sources out of their control, will lead to an even greater burden on 
municipalities.
    It is also important to note that the cost for stormwater 
discharges to attempt to meet water quality standards, rather than 
maximum extent practicable (MEP), would be astronomical. Unfortunately, 
the cost for requiring stormwater discharges to meet water quality 
standards was not even reflected in EPA's cost estimates of the TMDL 
program. According to an American Public Works Association Southern 
California Chapter study from May 1992, the nationwide capital cost for 
construction to meet numerical discharge limits to achieve water 
quality standards was $407 billion (1992 dollars). The associated 
annual operating and maintenance cost would be $542 billion (1992 
dollars).

              STATUTORY INCONSISTENCY WITH TMDL DEFINITION

    It's important to note that EPA's definition of a total maximum 
daily load differs from the Clean Water Act definition. The CWA 
definition states that ``such load shall be established at a level 
necessary to implement the applicable water quality standards with 
seasonal variations and a margin of safety which takes into account any 
lack of knowledge concerning the relationship between effluent 
limitations and water quality.'' The definition proposed by U.S. EPA in 
August states that a TMDL is ``a written analysis of an impaired 
waterbody established to ensure that water quality standards will be 
attained and maintained throughout the waterbody in the event of 
reasonably foreseeable increases in pollutant loads.'' The agency's 
definition is inconsistent with the law. NAFSMA supports the use of the 
statutory definition of TMDLs, which does not create speculation and 
limitations related to growth in the watershed.

               LISTING OF THREATENED AND IMPAIRED WATERS

    NAFSMA is opposed to the listing of threatened waterbodies and 
waterbodies impaired only by pollution. The proposed rules go beyond 
the statutory authority provided for listing requirements under Section 
303(d)(1)(A). By law, TMDLs establish the maximum amounts of pollutants 
a waterbody can tolerate without impairing designated uses. As 
proposed, this rulemaking extends the TMDL program authority to 
waterbodies that are not in fact impaired by pollutants. The 
requirements of 130.27 should only include waterbodies impaired by 
pollutants that are known. Threatened waterbodies should be excluded 
from the State's TMDL list. Placing threatened waterbodies on the TMDL 
list can lead to a legally enforceable lawsuit to develop a TMDL for a 
waterbody that is not impaired. Threatened waterbodies can be placed on 
the State's 305 (b) report where they can be tracked if required. It is 
also suggested that waterbodies listed on the TMDL list be allowed to 
be removed at any time not just during the next listing cycle as 
required by 130.29. Failure to remove a listed waterbody may lead to a 
TMDL which may not be required.
    NAFSMA is opposed to listing of waters solely impaired by 
pollution. Section 303(d) does not authorize EPA to require listing 
only for pollution. The CWA only provides for listing based on 
pollutants.

       NPDES PROGRAM AND FEDERAL ANTIDEGRADATION POLICY--OFFSETS

    NAFSMA members are concerned that the proposed regulations would 
create unauthorized Federal restrictions on development and growth. Our 
members are opposed to the requirement for offsets for new storm 
drainage outfalls. There is no legislative authority for this program 
and NAFSMA believes this runs counter to Congressional intent. Any 
expansion of Federal authority over local land use decisions must be 
established through Federal legislation, not through regulatory 
rulemakings.
    NAFSMA urges that NPDES permits for municipal stormwater discharges 
be specifically excluded from the 150 percent offset requirement for 
new dischargers and significantly expanding discharges. This action 
would be appropriate since there is no basis in the Clean Water Act for 
restrictions on new or expanding municipal stormwater discharges.
    NAFSMA believes that the proposed policy on antidegradation at 
Section 131.12 also goes beyond, and runs counter to, existing 
statutory authority. States are currently granted full authority over 
the adoption of their antidegradation policies under the Clean Water 
Act. Once again, this change would need to be made legislatively, not 
by regulation.
    The proposed requirements would also potentially require all new 
construction sites to be classified as new dischargers requiring 
offsets. It is suggested that the definition of new discharger be 
revised to be consistent with CWA Section 306 for new source which does 
not include outfalls and pipelines. Under that definition, new source 
pertains to industrial sources subject to a ``standard of 
performance.'' Failure to revise the definition will effectively stop 
construction projects unless offsets can be obtained.
       lack of adequate congressional review of the tmdl program
    In closing, the NAFSMA membership is extremely concerned that the 
full impact of the TMDL program has not been properly analyzed and 
reviewed by Congress. TMDLs were created to be one of the tools for 
attaining water quality, not the primary tool, and are not appropriate 
for all sources in the watershed. As we understand from our discussions 
with EPA staff, the cost of the inclusion of stormwater discharges in 
the program was not reflected in the cost estimates to date. We feel 
that the costs of including stormwater discharges in the TMDL program 
will be astronomical.
    NAFSMA is concerned that the funding that will be directed to this 
program to address stormwater would be spent more cost-effectively in 
areas where we have the science and technical capability to tackle 
significant water quality issues. We are asking that there be a 
thorough Congressional review of the proposed regulations and their 
expected impacts before the program moves forward. To finalize a 
program of this scope by summer 2000, without adequate congressional 
review of its impacts on States and local governments, would be 
inappropriate.
    Please feel free to contact NAFSMA Executive Director Susan Gilson 
at 202-218-4133 or Stormwater Committee Chairman Scott Tucker at 303-
455-6277 if you have any questions on this testimony.
                                 ______
                                 
  STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA

    Mr. Chairman, thank you for the opportunity to speak to you 
regarding the EPA's proposed Total Maximum Daily Loads (TMDL) 
regulations.
    I am also pleased to extend a welcome to Mr. Jeff Pardue, of 
Florida, who is the Director of the Environmental Services Department 
for Florida Power Corporation. Mr. Pardue will be presenting testimony 
to the subcommittee on behalf of Florida Power Corporation, the Edison 
Electric Institute and the Clean Water Industry Coalition.
    Mr. Chairman, if I look back over the past several decades it is 
incredible how far we have come in achieving real progress on 
environmental protection with respect to air, water, solid and 
hazardous waste matters.
    I am concerned, however, with the proposed TMDL regulations. In a 
letter to the EPA Administrator dated January 19, 2000, Florida 
Secretary of Environmental Protection David Struhs identified several 
issues of concern with the proposed TMDL regulations.
    Mr. Struhs expressed the view that the responsibility for 
development of non-point source controls rested with the States and 
that the proposed regulations represented a significant, unwarranted 
expansion of the regulatory approach to control such sources.
    He also noted that EPA should reconsider its proposed regulatory 
approach, if only for practical reasons in view of the large number of 
non-point sources that would need to be regulated.
    For these reasons, and others discussed in the letter to the EPA 
Administrator, Mr. Struhs suggests that EPA adopt a voluntary, 
technology based approach to non-point source control.
    Finally, Mr. Struhs notes that the State of Florida adopted its own 
TMDL related legislation which prescribes a comprehensive voluntary 
strategy for the non-point source component of waterbody TMDL's.
    The Florida TMDL legislation establishes incentives for non-point 
source sources implementing best management practices.
    I urge the EPA to review the State of Florida comments on the 
proposed TMDL regulation.
    Thank you Mr. Chairman. I look forward to working with the 
subcommittee on this important issue.
                                 ______
                                 
 STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE OF OREGON

    Mr. Chairman, I appreciate the opportunity to appear before the 
subcommittee today to discuss the Environmental Protection Agency's 
proposed rules regarding the Total Maximum Daily Load (TMDL) program 
under Section 303(d) of the Clean Water Act. These rules, proposed last 
August, would be a radical rewrite of the TMDL program, and would 
affect how States implement the entire Clean Water Act.
    I also appreciate your leadership on this issue, Mr. Chairman. I 
think that the Environmental Protection Agency (EPA) has exceeded its 
statutory charge in proposing these rules, and congressional oversight 
is therefore required. As you know, last session I led the fight to 
extend the comment period on these proposed rules. Initially, EPA was 
only going to provide a 60-day comment period for this complex 
rulemaking that seeks to regulate a number of industries and activities 
not previously regulated under the TMDL program.
    I authored an amendment, accepted by the managers of the VA/HUD and 
Independent Agencies Appropriations bill, that extended the comment 
period by 90 days.
    Given the 30,000 comments the agency received, I think that the 
additional time Congress mandated for the comment period was definitely 
warranted. It is my understanding that EPA heard from a wide range of 
interests that were critical of the proposed rules, including: other 
Federal agencies, State and local governments, manufacturing interests, 
landowners and others.
    In sum, these comments point out that EPA is proposing to use a 
sledge hammer when a fly swatter would do.
    I know that a broad range of stakeholders are testifying before the 
subcommittee today. Therefore, I want to focus my comments on the 
concerns raised by private forest landowners in my State, who are 
already required to operate using best management practices under the 
landmark Oregon Forest Practices Act.
    Under these proposed rules, a number of nursery and forestry 
practices would no longer be categorically excluded from the definition 
of ``point source.'' These activities include: nursery operations, site 
preparation, reforestation and subsequent cultural treatment, thinning, 
prescribed burning, pest and fire control, harvesting operations, 
surface drainage, or road construction and maintenance.
    Instead of being categorically excluded, selected sources could--on 
a case-by-case basis--be designated as point sources for regulation 
under the National Pollution Discharge Elimination System (NPDES) 
permit program for storm water discharges.
    This is a complete reversal from the treatment for the last 27 
years of forestry practices as non-point sources under the Clean Water 
Act. The implications of this reversal are staggering for the millions 
of private forest landowners in my State and across the nation.
    I believe that EPA has significantly underestimated both the costs 
to the landowner and the time that it would take to obtain permits 
under this proposal.
    The specter of a State or Federal permitting system for each 
management action needed on a stand of trees throughout its rotation is 
truly frightening. EPA reserves the right to take over any State's TMDL 
program, which would mean that landowners would then need to obtain a 
Federal permit, potentially subjecting those permits to consultations 
under the Endangered Species Act.
    Further, under the Act, landowners could be subject to fines of up 
to $27,500 a day, as well as to citizen lawsuits, for alleged permit 
violations.
    A number of State agencies have raised concerns about the high cost 
of implementing and administering this program. It is unlikely that 
sufficient State resources would exist to administer such a permit 
program in a timely manner. Currently, on the average, it takes several 
years from the time of making application for an NPDES permit before a 
landowner receives a permit.
    Adding forestry activities to the NPDES pipeline will only 
exacerbate this problem and reduce effective forest management, since 
many forestry activities are extremely time sensitive and weather 
dependent. For example, insect infestations, wildfires, and blowdowns 
are unpredictable occurrences that must be dealt with in a timely 
manner.
    We all share the goal of clean water, and our Nation has made great 
strides in cleaning up polluted waterways since the passage of the 
Clean Water Act.
    However, the EPA has failed to demonstrate that changing the 
treatment of everyday forestry activities to point sources of pollution 
is warranted. In fact, EPA has recognized forestry activities to be a 
consistently minor source of water quality impairment, as cited in 
EPA's 1996 National 503(b) Report.
    In my State of Oregon, there are about 28 million acres of 
forestland, representing 45 percent of Oregon's land base. Sixty 
percent of Oregon's forestland is publicly owned, while 40 percent is 
privately owned.
    Oregon's private forestland is regulated under the 1972 Oregon 
Forest Practices Act, which established a visionary new standard for 
forest management. Public forestland in Oregon is protected at a level 
at least equal to that provided by the Oregon Forest Practices Act. As 
a result, all of Oregon's forestlands are already required to provide 
protection to streams, lakes and wetlands. These regulations are 
unnecessary and will ultimately be detrimental to forest health.
    In closing, let me State that I have concerns about these proposed 
rules both substantively and procedurally. I have summarized my 
substantive concerns above. But I am also concerned that EPA has failed 
to fulfill a number of the requirements for promulgating a major rule 
such as this.
    I am not sure EPA has accurately assessed the costs of these 
proposed rules on State and local governments, as required under the 
Unfunded Mandates Act of 1995.
    Further, that Act requires the agency to consider reasonable 
alternatives and to select the least costly, most cost-effective or 
least burdensome of the alternatives, or explain why such alternatives 
were not chosen. I am not confident that any alternatives will be 
considered.
    I am not sure the Administration has adequately examined the cost 
of these rules on small businesses, as required by the Treasury and 
General Government Appropriations Act for fiscal year 2000.
    The arrogance with which EPA initially proposed only a 60-day 
comment period is exceeded only by the arrogance of claiming it will 
finalize these rules by the end of June. EPA's statutory authority to 
promulgate these rules is questionable at best, and too many issues 
have been raised by the comments to be addressed so quickly.
    I believe there is another agenda here at work. The issue isn't 
clean water, it is the Federal regulation of private lands, which has 
historically been the purview of State and local authorities.
    Every Member of Congress should be concerned about the proposed 
regulation of forestry under these rules, because if they are 
successful in regulating nursery and forestry activities, the 
regulation of agricultural practices is not far behind.

      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                              ----------                              

                        THURSDAY, MARCH 23, 2000

                               U.S. Senate,
         Committee on Environment and Public Works,
                  Subcommittee on Fisheries, Wildlife, and 
                                            Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.

                          IMPACT ON THE STATES

    Present: Senators Crapo, Thomas, Wyden, and Bob Smith [ex 
officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing on the proposed rule regarding 
total maximum daily loads, the TMDL Program, impacts on the 
regulated community by the Subcommittee on Fisheries, Wildlife, 
and Water is formally started.
    Today the Subcommittee on Fisheries, Wildlife, and Water is 
holding its second hearing in a series to examine the proposed 
changes to the total maximum daily load and NPDES programs 
under the Clean Water Act.
    Today, we will examine impacts on the regulated community. 
In addition to representatives of the regulated community, I am 
pleased that a number of my colleagues have joined us to offer 
their thoughts on the proposed rule.
    The General Accounting Office will offer their testimony on 
their recently published report describing the lack of data 
available for the establishment of TMDLs as well as the 
unreliability of the data. We will also hear perspectives from 
members of the environmental community.
    Earlier this month we heard concerns expressed by 
representatives of State agencies charged with implementing the 
TMDL 
program. Despite the very serious concerns of those State 
agency officials, we heard the EPA State very clearly that the 
agency intended to publish its final rule by June 30 of this 
year.
    In fact, in our last hearing it was clear that if necessary 
the EPA would request that OMB expedite review of the final 
rule which would short-circuit OMB's standard 90-day timeframe 
for reviewing major rules.
    I am deeply disturbed by this. Fast-tracking the proposed 
TMDL disregards both the stakeholders most effected by this 
rule and the authority of Congress.
    Because of the magnitude of this issue, we have more 
witnesses testifying today than is the norm. In the interest of 
time I am going to make my remarks brief, but I believe that it 
is important to reiterate that the EPA is without question 
fast-tracking the final publication of this rule.
    After the rule was proposed in August of last year the EPA 
provided a 60-day public comment period on the proposed rule. 
Sixty days for an extremely complex rule with enormous 
implications for States, communities, industries, and 
stakeholders to absorb, understand and respond.
    The comment period was finally extended and by the time the 
comment period ended on January 20, the agency had received 
30,000 public comments. In the time since the proposed rule was 
published, five congressional hearings have been held. At each 
of these hearings, witnesses have expressed serious concerns 
with regard to the rule being proposed.
    They have indicated that the rule would force States to 
bear enormous costs if implemented; that imposing a top-down 
program with little flexibility for local initiatives and 
consideration of complex site-specific conditions would impede 
rather than improve water quality; and that a major limiting 
factor in cleaning up our Nation's waters is a lack of 
resources.
    In looking over the testimony for today's hearing, I cannot 
say that I was surprised to see that the concerns with this 
rule are very consistent.
    What I fail to see is the demonstrated need for fast-
tracking this rule.
    In order to be successful in our goal of cleaning up our 
Nation's water, it is absolutely essential that we consider the 
concerns and recommendations of stakeholders and act 
accordingly.
    I appreciate our witnesses who are here with us today and 
look forward to understanding their concerns in greater detail.
    With that, Senator Wyden, do you have any comments?

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

    Senator Wyden. Thank you, Mr. Chairman. Mr. Chairman, I 
commend you for holding another hearing on this. I think we are 
making it clear that on a bipartisan basis we do want an 
alternative to EPA's approach.
    I am very much looking forward to our colleagues, both of 
whom know a lot about these issues and particularly about the 
forestry field.
    I would just have a couple of comments. As you know, Mr. 
Chairman, on March first I proposed a three-part alternative to 
the approach advanced by the Environmental Protection Agency 
and I was very pleased that Governor Roscoe, representing the 
Western Governor's Association, essentially said that he would 
support that three-part alternative.
    It seems to me the first thing we ought to focus on is 
increased support, increased funding for the best management 
practices approach to control pollution.
    I note that a number of the sites in Arkansas, for example, 
have essentially the same problem that we have in Oregon. We 
have problems in Arkansas, in Oregon associated with sediment.
    Now, best management practices, the forestry folks tell us 
that controlling of sediment isn't rocket science. It involves 
approaches like leaving tree buffers along the side of the 
streams, but this can be very expensive for the small landowner 
to do.
    It seems to me one of the things that we could go forward 
with is a part of a bipartisan alternative to what EPA is 
talking about, that is, additional funding for the best 
management practices approach.
    My sense is that it would do a lot for Oregon and Idaho and 
Arkansas and places where forestry is driving this debate and 
Governor Roscoe was very comfortable with that approach.
    Second, it seems to me that we ought to be looking at 
watershed management approaches, particularly allowing 
landowners to meet their obligations under the Clean Water Act 
and the Endangered Species Act, both of which our subcommittee 
has jurisdiction over, using a single land management plan.
    It is going to be increasingly important to coordinate what 
these various agencies do. This is another area where Governor 
Roscoe would support it.
    Finally, it seems to me that we ought to have a flexible 
approach to pollution budgets so that plans can be revised as 
more scientific data becomes available.
    In effect, the General Accounting Office report made clear 
to us that we will be required, as time goes forward, to revise 
pollution budgets as more data becomes available. Oregon is now 
using this kind of approach, what is called a ``phased 
approach,'' to in effect work on trying to come up with 
constructive solutions now while working to go forward to 
implement additional approaches as more data becomes available.
    I am looking forward to hearing from our two colleagues who 
do know an awful lot about it. As I was looking over those 
Arkansas sites and their problems, it certainly resonated to me 
because it was essentially the same thing we are hearing from 
small landowners in the forestry sector at home in Oregon.
    We have a bipartisan front on that side of the dais and a 
bipartisan front on this side of the dais. So, we ought to be 
able to get something done here to come up with a constructive 
alternative to the EPA program that does improve water quality, 
provides benefits for endangered species, but also minimizes 
the burden and some of this bureaucratic water torture on the 
small landowner on whom we all have a lot of them in our 
States.
    Mr. Chairman, I look forward to working with you and our 
colleagues.
    Senator Crapo. Thank you very much, Senator Wyden. I 
appreciate your notice of the fact that this is bipartisan on 
both sides of the dais here. As you know, we have spoken 
together about how we can work to find a bipartisan solution to 
this problem.
    I also find your analysis of it as ``water torture'' very 
appropriate.
    Our first panel today is Senator Tim Hutchinson from 
Arkansas and Senator Blanche Lambert Lincoln from Arkansas. 
Joining us later will be Senator Gordon Smith of Oregon.
    We welcome you here today. Senator Gordon Smith from Oregon 
was going to be with us, but his schedule has precluded that. I 
am sure that he will submit some written testimony for the 
record.
    Let us begin immediately. Senator Hutchinson, would you 
proceed?

 STATEMENT OF HON. TIM HUTCHINSON, U.S. SENATOR FROM THE STATE 
                          OF ARKANSAS

    Senator Hutchinson. Thank you. Thank you, Mr. Chairman and 
Senator Wyden. I want to thank both of you for your opening 
statements and your strong concern about this issue.
    Senator Crapo, thank you for calling the hearing today and 
the series of hearings that you have had. I want to thank the 
subcommittee for allowing me to speak on behalf of my Arkansas 
constituency.
    I am here because of an unprecedented outcry from my State 
in response to the EPA's August 1999 proposal to expand the 
total maximum daily load and the National Pollutant Discharge 
Elimination System Permitting Programs.
    In my years in the House and Senate, I have never 
experienced the kind of public involvement, public outcry as I 
have seen and evidenced in recent weeks in the State of 
Arkansas.
    I believe it is the intent of the EPA to treat traditional 
agriculture and forestry activities as potential point source 
polluters. I think if you look at their web page on the TMDL 
Program there can be no mistaking what the intent is, where 
they say:

    The proposed regulations would accomplish this goal by 
revising the existing regulations to provide EPA the authority 
to designate certain operations such as concentrated animal 
feeding operations, concentrated aquatic animal production 
facilities and certain silviculture operations as point sources 
and require them to obtain NPDES permits after completion of 
the TMDL.

    That, to me, is very clear. It is very ominous, to think 
that such a rule is not only being proposed, but as you said, 
Mr. Chairman, fast-tracked in light of an unprecedented public 
outcry is unthinkable and inexplicable.
    I believe it is a deliberate attempt to circumvent the 
Clean Water Act and legislate through regulation, directly 
contradicting Congress's intent when it debated and passed 
legislation on non-point source pollution.
    We were in the House, and the Environment and Public Works 
Committee, as it was called in those days. We had a year of 
hearings on the Clean Water Act in which this very issue was 
debated thoroughly and at great length, and the Congress, in 
the Clean Water Act, specifically rejected the approach that 
EPA is now proposing to take.
    I participated in that debate and recall specifically that 
the State would be granted the ability to define and enforce 
this matter absent the intrusion of EPA. That is why we have a 
Congressional Record. That is why we have committee records. I 
hope EPA will crack open its copy and take a look before 
launching its next overriding initiative.
    Mr. Chairman, farmers, foresters, private landowner and 
community leaders from across Arkansas are deeply worried that 
requiring States to enforce stricter TMDL standards will 
stretch State, local and private resources to the breaking 
point.
    In January I spoke at a public meeting in Eldorado, AR 
which drew 1,500 concerned citizens. I never had a town meeting 
I could get 1,500 at. Weeks later, a meeting in Texarkana, AR 
attracted 3,000 landowners. Last week I spoke to a crowd, along 
with Senator Lincoln in Fayetteville, AR in which there were 
3,300 constituents there. That is an unprecedented public 
turnout.
    It begs the question as to who is driving this policy. It 
is clear that implementing the EPA's new proposal would only 
divert already limited funds and resources away from successful 
State implementation programs and hand them over to 
bureaucratic Federal procedures and oversight.
    While testifying before the House Appropriations Committee, 
Administrator Browner said she felt the EPA was forced to act 
in response to lawsuits brought by environmental groups like 
the Sierra Club who were dissatisfied with the agency's lack of 
enforcement at the State level.
    The fact that special interest groups are driving Federal 
policy by intimidating States and the EPA with litigation runs 
completely contrary to how I believe our government should be 
run. It is not democratic. It is not fair to Arkansans who work 
very hard to manage their land and manage it properly and 
carefully.
    Thousands of people who attended these meetings have 
families. They have busy schedules as we do. They have many 
other responsibilities, but they are willing to sacrifice their 
time, learn more about this proposed regulation, how it will 
effect their livelihood and express their own alarm about it.
    One of the core issues motivating Arkansans to attend 
public meetings by the thousands is trust. Ultimately, the 
people of my State do not trust the EPA. In other words, the 
EPA has not earned the trust of my constituents.
    The EPA has done an incredibly poor job communicating their 
proposal to those who it will affect the most. During my time 
in public service, I simply have never seen this kind of public 
outcry.
    In terms of States handling this matter, Arkansas alone has 
put forth a tremendous effort to implement statewide best 
management practices, as Senator Wyden expressed, to other 
water quality regulations.
    I think the idea of providing resources and incentives for 
them to continue that effort is a good idea. Our poultry litter 
management plan is a model for other State-level plans.
    Arkansas's forest industry has reduced its impact on local 
watersheds by 85 percent through voluntary best management 
practices. Simply put, the States are getting the job done and 
must continue to have the freedom to handle this matter on the 
local level, not from Washington, as we intended when we passed 
the Clean Water Act.
    That is why I have introduced legislation and Senator 
Lincoln has introduced legislation to prevent this proposed 
rule from impacting two of our State's most important 
industries, agriculture and timber.
    My bill, S. 2139, consists of two simple parts. First, it 
restores the exemption for silviculture operations and exempts 
agriculture storm water discharges from EPA's NPDES permitting 
requirements.
    Second, it defines non-point source pollution relating to 
both agriculture storm water and silviculture operations. It is 
great to look at alternatives, but the first thing we have to 
do is put the brakes on the EPA.
    EPA, under the current Administration, has never ceased in 
its efforts to impose stricter, more expensive Federal 
environmental regulations on hardworking Americans and 
hardworking Arkansans.
    In the end, I feel that this proposal will not only harm 
agriculture and forestry, but impede the water quality gains 
being made by States and private landowners.
    I think our founding fathers had great foresight in 
establishing a system of government based upon three branches 
and many, many checks and balances.
    One of the dangers to our form of government today is that 
non-elected agencies, not responsive because they don't stand 
for election, have in effect acceded to themselves the power to 
be a fourth branch of government.
    In this case, I think the EPA has been unresponsive to the 
people they serve and to the Congress that established the 
statutory legislation for the actions that they propose to 
take.
    I think it is time that we did something about it. I want 
to thank you for holding these hearings on this important 
issue. I look forward to working with Senator Lincoln, with 
Senator Smith and with your subcommittee on assuring that EPA 
does not implement these burdensome and, I think, unnecessary, 
regulations.
    Senator Crapo. Thank you very much, Senator Hutchinson.
    Before I turn to Senator Lincoln I wanted to tell Senator 
Wyden and Senator Smith that in effect the three of us have 
them outnumbered because we were all elected to the House at 
the same time as part of what I think may have been the largest 
freshman class, 110 Members, if I remember correctly, new 
freshman Members, and we were pretty rowdy and we began to rock 
and roll over there in the House pretty heavily and here we are 
now, all of us, sitting over here in the Senate trying to solve 
another problem.
    Senator Lincoln and I ended up being the most junior 
members on the Commerce Committee and it wrapped all around and 
we sat by each other on the front row.
    Anyway, Senator Lincoln, it is a pleasure to have you here 
with us. Would you please begin?

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

    Senator Lincoln. Well, thank you, Mr. Chairman. It sounds 
great, like you said to reminisce and say that we were all over 
there, the three of us on the Commerce Committee together and 
here we are back again. There is a good comfort level in that 
and I appreciate it.
    I thank you, Mr. Chairman, for allowing me to testify this 
morning and I would like to submit my full remarks for the 
record.
    Senator Crapo. Certainly.
    Senator Lincoln. I will try very hard to be brief and 
summarize my statement. I do want to extend my thanks to you 
for your leadership on this issue, your willingness to devote 
the time and energy that you have in the subcommittee on this 
and focusing in on an issue that is very important to us in 
Arkansas, as my colleague has mentioned.
    I also want to thank my colleague from Arkansas. I have 
enjoyed working with him on this issue and this is important 
for us to work together for our constituents. I appreciate it 
very much.
    I hope I won't be too redundant on the issues for 
Arkansans. He has touched on a great deal that is important to 
us.
    The Environmental Protection Agency's new extension of the 
Total Maximum Daily Load regulations, if enacted, would affect 
thousands of our constituents, directly and immediately.
    In Arkansas, as my colleague has mentioned, we have held 
several public meetings where literally thousands of concerned 
foresters and farmers have voiced their opinions on how the new 
Total Maximum Daily Load regulations could affect them.
    My colleague was absolutely correct in his explanation of a 
public outcry. The numbers were phenomenal. We only wish that 
we could get those numbers to some of our town hall meetings 
and the other things that we try to do.
    But I think it is obvious from those outcries and certainly 
from those numbers that the new TMDL regulations are definitely 
on the minds of Arkansans. They are very interested in learning 
more about it and understanding what they can do about the new 
regulations.
    I have met with Administrator Browner personally on this 
issue to let her and the Administration know the devastating 
effects this regulation would have on the State of Arkansas.
    I had hoped to work for an administrative solution on the 
problem because sometimes it is quicker as opposed to going the 
legislative route with a new regulation. But a compromise 
doesn't appear to be reachable.
    I was left with no other option but to pursue legislative 
remedies. That is why we are here today.
    Mr. Chairman, Arkansas is commonly called ``The Natural 
State.'' This motto reflects our dedication to preserving the 
unique, natural landscape that we have in Arkansas.
    We have one of the most diverse forest systems in the 
United States. Most streams and rivers in Arkansas originate or 
run through these timberlands and are sources for water 
supplies, prime recreation and countless other uses for 
Arkansans.
    In Arkansas we also enjoy a healthy and sustainable private 
forestry industry. Private forestry is an important part of the 
economy and infrastructure of Arkansas and our Nation. My home 
State of Arkansas has a total land area of 33.3 million acres. 
That sounds like peanuts to you guys, I realize that. But over 
50 percent of this land area, 18.4 million acres, is forested.
    Our private forestry industry preserves our forests lands 
and the streams that surround them and come through them to 
ensure that the forestry can continue in Arkansas.
    I come from a seventh generation Arkansas farm family and I 
was always taught to respect the land. As families whose 
livelihood depends on our natural resources, it is in our best 
interest to protect our most valuable resources, the land and 
the water.
    We have instituted best management practices and 
sustainable forestry initiatives to ensure that proper 
techniques are used to protect our water quality. These plans 
are voluntarily adhered to by over 85 percent of our private 
timberland owners. That is phenomenal participation in a 
voluntary program.
    In fact, Arkansas has been recognized nationally for having 
some of the most successful BMP plans in the Nation. I could 
talk for hours about the timber industry in Arkansas and why 
the EPA's new regulations are unreasonable and unnecessary. But 
in the interest of time and certainly my colleagues' patience, 
I will refer you to my written remarks and make a brief 
statement about the legislation I have introduced regarding 
this issue.
    As stated in the announcement of the new EPA rule, this 
extension of the TMDL regulations could have an economic effect 
of over $100 million in the silviculture industry.
    The EPA says it does not expect the rules to affect small 
business, but Mr. Chairman, the majority of Arkansas and the 
Nation's private timber industry are considered to be small 
business. Many of Arkansas's private timberland owners consider 
themselves tree farmers, just like my father. In addition, 
officials at the Arkansas Department of Environmental Quality 
have said they do not have the manpower or the resources to 
enforce the proposed rule.
    Responding to these concerns, on February 7, I introduced 
legislation to statutorily classify silviculture sources of 
water pollution as nonpoint sources. This legislation is not 
intended to undermine the EPA's ability to ensure that our 
Nation maintains a clean water supply.
    In fact, it accomplishes quite the opposite. It is an 
effort to reinforce the fact that many forestry-related 
activities are already adequately policed at the State level so 
that water supplies do not become impaired.
    Many silviculture activities that benefit the environment 
such as conducting responsible harvesting and best management 
practices will actually be discouraged by the proposed rule and 
regulation.
    My bill, very simply, follows the lead from the 1977 and 
the 1987 Clean Water Act amendments where agriculture storm 
water and irrigation flows were exempted from the TMDL 
regulations and will statutorily exempt forestry nonpoint 
sources of water pollution from being covered by TMDL point 
source permitting regulations just as was done in those 1977 
and 1987 amendments.
    My bill will statutorily designate the forestry activities 
of site preparation, reforestation, thinning, prescribed 
burning, pest and fire control, harvesting operations, surface 
drainage, road construction and maintenance, and nursery 
operations as nonpoint sources.
    My colleagues have stated time and time again, Congress has 
always intended rainwater runoff from agriculture, forestry and 
small animal feeding operations to be considered as nonpoint 
sources of water pollution.
    It was never congressional intent for the EPA to regulate 
nonpoint sources of water pollution. It was the same in 1972 
when Congress passed the Clean Water Act as it is today. We 
must ensure that the original congressional intent remains in 
place as far as the authority of the EPA over point and 
nonpoint sources of water pollution.
    Mr. Chairman, I believe we can find ways to ensure that 
Congress, the EPA, the States and our private property owners 
can continue to improve clean water throughout the Nation, just 
as they have been doing much on the local and State level.
    We should be promoting what works; voluntary best 
management practices, responsible care of our land, and each 
State's current ability to enforce nonpoint source pollution 
control through the appropriate measures.
    It works. It has worked in the past and it is continuing to 
work today. None of us here seek to inhibit the goal of 
cleaning up and maintaining this Nation's clean water supply. 
But merely requiring a point source permit for traditional 
nonpoint sources of water pollution is not the best answer to 
the problem of cleaning up our Nation's rivers, lakes and 
streams.
    In other words these new regulations would require permits 
on the very things that we want to promote in forestry: 
responsible harvesting and thinning operations, best management 
practices and reforestation, all of the things that are helping 
us right now to clean up our rivers and streams and maintain 
them.
    I am committed to working with this committee, the 
Administration and the Senate to find the right approach to 
assisting the State in their effort to address diverse sources 
of water pollution.
    I appreciate your leadership once again, Mr. Chairman. To 
all of my colleagues who are serious about working on a very 
important issue to the people of Arkansas and the people of 
this Nation, we should enhance the work that is done in the 
States and not simply overburden them with a Federal regulatory 
approach that does little to achieve the objective that we all 
have, and that is clean water.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much.
    We have been joined by Senator Gordon Smith of Oregon. Do 
the two of you need to leave?
    Senator Hutchinson. Mr. Chairman, I would beg your 
indulgence and apologize to Senator Smith if I might be 
excused.
    Senator Crapo. We will let you read his statement later.
    Senator Hutchinson. I promise.
    Senator Crapo. Any of you are welcome to come and join us 
throughout the hearing as well as up here on the dais after 
your testimony.
    We have been joined now by Senator Gordon Smith from 
Oregon.
    Senator Smith, we welcome you here. Would you like to make 
a statement?

STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE OF 
                             OREGON

    Senator Smith of Oregon. I would. Thank you, Mr. Chairman 
and Senator Wyden. It is good to be here in this committee. I 
am pleased to be joined by other colleagues who have said what 
I will say in different ways.
    I will go ahead and present this statement and then have a 
few comments, Mr. Chairman. I appreciate this chance to appear 
before the subcommittee to discuss the Environmental Protection 
Agency's proposed rules regarding TMDL under section 303(d) of 
the Clean Water Act. These rules proposed last August would be 
a radical rewrite of the TMDL program and would affect how 
States implement the entire Clean Water Act.
    I also appreciate your leadership, Mr. Chairman. I think 
that the Environmental Protection Agency has exceeded its 
statutory authority in proposing these rules.
    Frankly, if we in the Congress do not do our job I have 
every reason to believe that the courts will prevent this from 
ever occurring, because this is not a monarchy. There are three 
branches of government and we each have a role to play.
    As you may recall last session, I led the fight to extend 
the comment period on these proposed rules. Initially EPA was 
only going to provide a 60-day comment period for this complex 
rulemaking that seeks to regulate a number of industries and 
activities not previously regulated under the TMDL program.
    I offered an amendment accepted by the managers of the VA-
HUD-Independent Agencies Appropriations bill that extended the 
period for comment by an additional 90 days. Given that 30,000 
comments the agency received, I think that the additional time 
Congress mandated for the comment period was definitely 
warranted.
    It is my understanding that EPA heard from a wide range of 
interests that were critical of the proposed rule. These 
included other Federal agencies, State and local governments, 
manufacturing interests, landowners and others. Some of these 
comments point out that EPA is proposing to use a sledge hammer 
when a fly swatter would do.
    I know that a broad range of stakeholders are testifying 
before the subcommittee today. Therefore, I want to discuss my 
comments on the concerns raised by private forest landowners in 
my State who are already required to operate using best 
management practices under the Landmark Forest Practices Act.
    Under these proposed rules a number of nursery and forestry 
practices would no longer be categorically excluded from the 
definition of point source. These activities include nursery 
operations, site preparation, reforestation and subsequent 
cultural treatment, thinning, prescribed burning, pest and fire 
control, harvesting operations, surface drainage or road 
construction and maintenance.
    I think it is clear, Mr. Chairman, that while we have 
essentially ended harvest on public lands, this is an effort to 
end them on private lands as well.
    Instead of being categorically excluded, sources could on a 
case-by-case basis be designated as point source pollution for 
regulation under the National Pollutant Discharge Elimination 
System, called an NPDES permit program for storm water 
discharges.
    This is a complete reversal from the treatment for the last 
27 years of forestry practices as a nonpoint source under the 
Clean Water Act. The implications of this reversal are 
staggering for millions of private forest landowners in my 
State and across the Nation.
    I believe that EPA has significantly under-estimated both 
the cost to the landowner and the time that it would take to 
obtain permits under this proposal.
    The specter of a State or Federal permitting system for 
each management action needed on a stand of trees throughout 
its rotation is truly a frightening prospect.
    EPA reserves the right to take over any State's TMDL 
program which would mean that landowners would then need to 
obtain a Federal permit, potentially subjecting those permits 
to consultations under the Endangered Species Act as well. You 
can just count on that Mr. Chairman. That is what this is all 
about.
    Further, under the act landowners could be subject to fines 
of up to $27,500 a day as well as to citizen lawsuits for 
alleged permit violations. These would surely add to an already 
enormous backlog in our Federal courts.
    A number of State agencies have raised concerns about the 
high cost of implementing and administering this program. It is 
unlikely that sufficient State resources would exist to 
administer such a program in a timely manner. I can tell you 
that is true in my own State's budget.
    Currently, on the average it takes several years from the 
time of making applications for an NPDES permit before a 
landowner receives that permit. Adding forestry activities to 
the NPDES pipeline will only exacerbate this problem and reduce 
effective forest management because many forestry activities 
are extremely time-sensitive and weather-dependent.
    For example, insect infestation, wildfires and blow-downs 
are unpredictable occurrences that must be dealt with in a 
timely manner. We all share the goal of clean water. Our Nation 
has made enormous strides in cleaning up polluted waterways 
since the passage of the Clean Water Act.
    However, the EPA has failed to demonstrate that changing 
the treatment of everyday forestry activities to point sources 
of pollution is warranted. In fact EPA has recognized forestry 
activities to be a consistently minor source of water quality 
impairment as cited in EPA's own 1996 national 503(b) report.
    In my State of Oregon there are about 28 million acres of 
forest land representing 45 percent of Oregon's land base. 
Sixty percent of Oregon's forest land is publicly owned while 
40 percent is privately owned.
    Again, Mr. Chairman, this is to shut down the other 40 
percent. Oregon's private forest land is regulated under the 
1972 Oregon Forest Practices Act which established a visionary 
new standard for forest management.
    Public forest land in Oregon is protected at a level at 
least equal to that provided by the Oregon Forest Practices 
Act. As a result, all of Oregon's forest lands are already 
required to provide protection to streams, lakes and wetlands.
    These regulations, therefore, are unnecessary and will 
ultimately be detrimental to forest health. It is just 
bureaucracy on top of bureaucracy.
    Let me state that I have concerns about these proposals, 
both substantively and procedurally. I have summarized my 
substantive concerns above, but I am also concerned that EPA 
has failed to fulfill a number of requirements for promulgating 
a major rule such as this.
    I am not sure EPA has accurately assessed the cost of these 
proposed rules on State and local governments as required under 
the Unfunded Mandates Act of 1995.
    Further, that act requires the agency to consider 
reasonable alternatives and to select the least costly, most 
cost effective or least burdensome of the alternatives or 
explain why such alternatives were not chosen. I am not 
confident that any alternatives will be considered.
    I am also not sure that the Administration has adequately 
examined the cost of these rules on small businesses as 
required by the Treasury and General Government Appropriations 
Act for fiscal year 2000.
    The way the EPA initially proposed only a 60-day comment 
period is incredible to me. They need to do better by us. They 
need to stop acting like, ``peasants, get out of the forest.''
    They have done that on the public lands. They should not be 
allowed to do that on the private lands.
    Mr. Chairman, that concludes my testimony.
    Senator Crapo. Thank you very much, Senator Smith.
    Senator Smith and Senator Lincoln, if you have time either 
now or throughout the time that the hearing is underway, you 
are welcome to join us on the dais at any time.
    We will now proceed to the second panel. I should say we 
have been joined by Senator Craig Thomas from Wyoming. In the 
interest of time he has indicated that he will forego an 
opening statement.
    We thank you very much for that, Senator.
    Mr. Peter Guerrero, Director of Environmental Protection 
Issues at the General Accounting Office.
    Mr. Guerrero, we thank you for appearing before us today. 
You may proceed.

STATEMENT OF PETER GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION 
               ISSUES, GENERAL ACCOUNTING OFFICE

    Mr. Guerrero. Thank you, Mr. Chairman.
    Senator Crapo. I should say, we ask you to try to keep your 
testimony to 5 minutes. I think you know the rule on the clock. 
We have a very long witness list today, so I am going to remind 
all the witnesses of that. Thank you very much.
    Mr. Guerrero. Mr. Chairman, I will summarize my written 
statement in the interest of time. I also would like to mention 
that with me today are two staff members who worked on the 
report that was recently released, Trish McClure and Steve 
Elstein. I would like to be able to call them up to help answer 
questions that you or other members may have after my remarks.
    Senator Crapo. Thank you.
    Mr. Guerrero. I am pleased to be here to discuss whether 
EPA and the States have the data they need to make critical 
water quality decisions required by the Clean Water Act. The 
Act, as you have heard this morning, has been credited with 
greatly improving the condition of the Nation's waters. Much of 
this progress has come from addressing point sources of 
pollution.
    The job that lies ahead will be much more difficult because 
it requires greater emphasis on controlling nonpoint sources.
    Our ability to effectively deal with these problems depends 
heavily on the efforts of States to monitor their waters, to 
identify the most serious problems and to develop strategies to 
deal with those problems.
    Comprehensive and reliable monitoring data have therefore 
become especially important. As you know, attention to our 
remaining water quality problems has been the subject of both 
lawsuits and EPA's proposed regulation.
    The first step in this regard involves listing these waters 
as not meeting water quality standards under what is called 
section 303(d) of the Act. Once listed as impaired, States will 
then need to develop and implement Total Maximum Daily Loads or 
TMDLs which are intended to help restore water quality by 
reducing the amount of pollution these waters receive.
    Last year the House Water Resources Subcommittee asked us 
to report on whether States have the data they need to carry 
out several key activities for managing water quality. In 
addition, that subcommittee asked us to determine if the 
information in EPA's national water quality inventory report is 
reliable and representative of water quality conditions 
nationwide.
    My remarks today are based on this recently issued report 
and will focus on three issues. First the adequacy of data for 
identifying waters that do not meet standards even after the 
application of required pollution controls, in other words, 
impaired waters.
    Second, the adequacy of data for developing TMDLs to 
restore those waters.
    Third, the key factors that affect the States' ability to 
develop these TMDLs. We conducted a survey of 50 States 
including the District of Columbia. We conducted detailed 
interviews in four States and we also interviewed numerous EPA 
headquarters and field and regional office officials.
    Regarding the first of these questions, Mr. Chairman, only 
six States responded that they have the majority of data needed 
to fully assess their waters.
    We believe this raises serious questions as to whether the 
State 303(d) lists of impaired waters accurately reflects the 
extent of the pollution problems today.
    While State officials we interviewed told us they felt 
confident that they had identified most of their serious water 
quality problems, some also acknowledged that they would find 
additional problems with more monitoring.
    Moreover, studies that have involved more thorough 
monitoring have identified unforeseen problems. For example, in 
1993 an EPA-funded study of toxins in lakes showed wide-spread 
levels of mercury in Maine's lakes, despite the belief of State 
officials that these waters were meeting standards.
    As a result of these surprising findings, the State issued 
advisories against the consumption of fish for all of the 
State's lakes. While State officials acknowledged they might 
not have identified all waters that need TMDLs, they also told 
us that there were some waters on their 303(d) lists that may 
in fact meet standards and not require a TMDL. The reasons for 
this varied widely.
    For example, officials in one State said that they had 
mistakenly assessed some waters against higher standards than 
necessary. In another State officials told us that about half 
of the waters on the impaired list were placed there in the 
absence of current monitoring data and that subsequent 
monitoring data later showed that waters did indeed meet 
standards.
    Regarding the second issue, the adequacy of data to develop 
TMDLs, States reported they had much more of the data they need 
to develop these TMDLs for point sources than for nonpoint 
sources.
    States can easily identify and measure point sources of 
pollution because these sources generally discharge pollutants 
through pipes or other easily identified sources.
    So it is not surprising that 40 States reported they have 
the majority of data they need to identify point sources 
causing pollution problems. Twenty-nine said they have the 
majority of data to develop TMDLs to address these problems.
    On the other hand, nonpoint sources, by their very nature, 
are difficult to identify and measure. As a result, developing 
TMDLs for pollution problems caused by nonpoint sources often 
requires additional data collection and analysis.
    For this reason, as the chart in front of you illustrates, 
few States have the majority of the data they need either to 
identify nonpoint sources of impairment or to develop TMDLs to 
address these problems.
    The bars on the left of that chart there show the numbers 
of States that feel confident that they have more than the 
majority of the data to identify point sources and develop 
TMDLs for those point sources.
    There are two bars on the right side which are noticeably 
lower and actually involve only three States in each category 
and they are the numbers of States that feel they can 
adequately right now deal with those nonpoint sources.
    States also told us that their ability to develop TMDLs for 
nonpoint sources is limited by a number of factors. States 
overwhelmingly cited shortages in funding and staff as a major 
limitation.
    In addition, they reported they needed analytical tools and 
technical assistance to use the complex models and methods that 
are frequently needed.
    Several activities are currently underway at EPA, as 
discussed in my prepared statement and in our report, that 
could help States in some of these areas. Nevertheless, there 
are still critical areas in which States identified the need 
for additional tools or assistance. One is the need for expert 
advice in using watershed models and analytical methods.
    Because many of the remaining pollution problems are caused 
by nonpoint sources or a combination of point and nonpoint 
sources, States are increasingly faced with complex analysis 
that require the use of those types of models.
    In addition, EPA could help States to facilitate the 
development TMDLs by sharing lessons learned and by 
establishing a clearinghouse of information.
    Perhaps most important, we believe EPA needs an overall 
strategy for identifying and addressing States needs for 
developing TMDLs.
    That concludes my summary remarks, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Guerrero. In your 
report you find that State officials feel pretty confident that 
they have identified the most seriously impaired waters, but 
that they would likely find more if they were to have the 
resources and the ability to do a more thorough and more 
effective evaluation.
    You also State that officials report that some waters on 
their 303(d) lists don't need TMDLs. The question I have is, 
would it appear that the lack of and/or unreliability of the 
data could result in solving water problems that don't exist?
    Mr. Guerrero. It is clear that additional monitoring will 
be needed to implement this TMDL approach and that without it 
some States have listed waters on their impaired lists that 
will not require a TMDL.
    Senator Crapo. I note in reading your report, the full 
report, on page 9 there is a chart that shows the percentage of 
waters monitored, evaluated and not assessed broken down by 
oceans, rivers and streams, lakes and estuaries.
    There are sort of four categories of how these waters have 
been evaluated and/or not evaluated. The first is waters 
assessed using monitoring data. I take it that is sort of like 
site-specific assessment. Is that correct?
    Mr. Guerrero. That is correct. That is actually taking 
samples, analyzing those samples for chemical or physical 
parameters.
    Senator Crapo. Then the next one is waters evaluated. I 
kind of understand that category to be sort of a professional 
judgment not based on data, sort of a ``drive-by'' is what I 
read that category to be. Is that correct?
    Mr. Guerrero. It can be based on monitoring data that is 
more than 5 years old and it can be based on professional 
judgment.
    Senator Crapo. But it is certainly not based on current 
data?
    Mr. Guerrero. That is correct. It is not based on current 
monitoring data.
    Senator Crapo. Then the next category is ``waters assessed 
using unspecified means.'' Now what is that?
    Mr. Guerrero. Well, here I would like to call on Tricia for 
that answer.
    Ms. McClure. Good morning.
    Senator Crapo. Good morning.
    Ms. McClure. That is exactly what it is, the States didn't 
specify what means they used. In ``unspecified means,'' the 
States did not indicate whether it was monitored or evaluated 
or what methods they used to determine those assessments.
    Senator Crapo. So we don't know how they got that 
information?
    Ms. McClure. Exactly.
    Senator Crapo. All right. Then the last is ``waters non-
assessed.'' I assume that means that nothing was admittedly 
done with regard to those waters.
    Ms. McClure. Yes.
    Senator Crapo. Now, as I look at this chart using those 
types of understandings, it appears that much more than half of 
all the assessment that has been done has not been done with 
site-specific information.
    Mr. Guerrero. That is correct, yes. For streams, I believe 
is the----
    Ms. McClure. On average, it is across all water bodies.
    Senator Crapo. Yes. As I say, it is about 50/50 on oceans 
and shorelines. It is maybe a little bit more on rivers and 
streams out of those that are assessed which is a very 
significant minority.
    The vast majority of lakes and a little less than half of 
all the estuaries have been assessed with information that is 
not site-
specific.
    Mr. Guerrero. Correct.
    Ms. McClure. Correct.
    Senator Crapo. To me that indicates a tremendous amount of 
room for error. I assume that that error could go either way, 
either we will be missing problems or finding problems that are 
not really there. Is that correct?
    Mr. Guerrero. That is correct. I think another way of 
saying that, too, is that it indicates how much more data are 
needed to approach this particular problem and to do it in the 
best way possible with the least cost.
    Senator Crapo. All right. Well, thank you very much. I have 
no further questions at this point.
    Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. I want to followup 
on exactly the same line of questions that the Chairman did and 
start by saying that I would like you all to give us a sense of 
how much it would cost the States to require the data needed 
under the EPA proposed rules.
    Mr. Guerrero. We were told that developing the data 
necessary to support a TMDL averaged about 40 percent of the 
cost of developing the total TMDL package. In other words, 
there are various activities associated with a TMDL. The data 
development costs with that could be up to 40 percent.
    So it is a very substantial part of the price.
    Senator Wyden. Do the math for me, so that I don't have to 
go back to the office and take out an abacus.
    Mr. Guerrero. In terms of dollars?
    Senator Wyden. Yes. What is it going to cost the States? 
What you have here, folks, is you have five members of the U.S. 
Senate, and I suspect the Senator from Wyoming is in our camp 
as well, who don't agree with what the EPA is doing.
    I have made it clear that while I do not agree with what 
the EPA is doing, I want to suggest a constructive alternative 
that builds on these State initiatives.
    One of the key questions for us to look at, you know, a 
bipartisan alternative, is to get a sense in real dollars of 
what it is going to cost the States to acquire the data.
    So, can you give us a ballpark of what it will cost them?
    Mr. Guerrero. Yes. You are asking exactly the right 
question. We have been asked that question as a followup to 
this work by the House Water Resources subcommittee and we will 
be looking at that issue.
    Senator Wyden. Well, give us the minimum price tag this 
morning.
    Mr. Guerrero. We cannot without doing an analysis of that 
issue. We have not even started that analysis yet. We 
anticipate we will be starting it shortly. So, we just have not 
done any work there to give you any feel for that.
    But as soon as possible we will report that information 
because I understand that it is really the crux of the issue 
here.
    Senator Wyden. When could we be given an analysis that 
would show exactly how much this would cost in our States?
    Mr. Guerrero. Without sitting down with my economists and 
my lawyers, because there are issues, as you have heard this 
morning, as to whether the Unfunded Mandates Act should apply 
or should not apply as EPA has maintained it does not.
    It is hard for me to give you an estimate. As soon as we 
can I will do that.
    Ms. McClure. I think it is important to point out that EPA 
is conducting a study called the GAP analysis looking at the 
cost not only of TMDL implementation, but all aspects of water 
quality management programs. They are supposed to be finalizing 
a methodology for estimating costs this Spring and would 
presumably, after that, implement it across the States.
    Senator Wyden. What is really striking about this, Mr. 
Chairman, is that you are supposed to do those cost analyses 
before you go forward. Here we have a situation where in effect 
we have a rule out there, tremendous, you know, time crunch.
    We have the GAO saying that they do not have the numbers in 
terms of what it is going to cost. They have talked to the 
agency and the agency is doing an analysis so that at some 
point some day down the road they are going to have an idea of 
what it is going to cost.
    And yet we are going to stick it to small landowners at 
this point. I think that that sort of shows to me the fallacy 
in the way this process has evolved.
    The only other questions I have involve some technical 
matters.
    Do you see any evidence that EPA is at least sharing some 
of the data they are picking up with other agencies, like USGS 
and other agencies so that again we don't just go out and 
duplicate these exercises again and again?
    Ms. McClure. Can you clarify what type of data you are 
referring to?
    Senator Wyden. Well, the kind of data that is going to be 
collected under this proposed rule is going to be useful for 
other agencies like USGS and we have gotten kind of mixed 
reports about whether they are sharing the data. Are they?
    Mr. Guerrero. Yes. We did recommend that in terms of EPA's 
reporting of water quality that they need to do more of that. 
In response to our recommendation in that regard, EPA said they 
already do it.
    We don't think that they do enough of that. We think there 
is a potential for more sharing of that type of information.
    Senator Wyden. My last question is about the technical 
assistance area. As far as I can tell you say they are coming 
up short as well. Is there any evidence that EPA is responding 
to this?
    Ms. McClure. They did initiate work on a strategy to try to 
identify State needs and what type of activities EPA needs to 
develop to support TMDL development. However, they put that 
effort on hold and have not started that effort again.
    In our report we recommend that EPA needs to do that.
    Senator Wyden. Well, I think this sort of highlights it, 
Mr. Chairman. They are short in terms of technical assistance. 
They are short in terms of sharing data collection with other 
Federal agencies.
    We are now going out and collecting the cost data that 
would be relevant to what States would need to know after there 
is a proposed rule. I think it just highlights the need for us 
to come up with an alternative, to come up with an alternative 
promptly.
    It seems to me that is how you create the strategy that is 
in the public interest, that ensures water quality and 
minimizes legitimate and avoids unnecessary burdens to 
landowners.
    I am going to have to depart as well, but I want to 
reiterate, as I have with you, Mr. Chairman, that I am very 
much looking forward to proceeding with an alternative out of 
this subcommittee quickly.
    Senator Crapo. Thank you very much, Senator.
    Senator Thomas.
    Senator Thomas. Thank you, Mr. Chairman.
    You have, I presume, dealt with the States and their 
agencies as you did this. I also assume that most people or 
most of us would like to do something with impaired streams and 
so on.
    What sort of a reaction did you get? How did States and 
agencies on the State level believe they could best proceed?
    Ms. McClure. States definitely indicated they prefer to 
deal with these complex nonpoint source problems through the 
phased approach. Since nonpoint source problems are very 
difficult to understand and require a good bit of monitoring 
and analysis to be able to get to that point to develop a 
definitive TMDL, they would much prefer to take a phased 
approach, implement BMPs on likely sources that are serious 
contributors and then monitor to see how well these actions are 
working.
    Senator Thomas. Are they in a position to do that, most of 
them, do you think?
    Ms. McClure. Yes.
    Senator Thomas. So they could move forward in it. Is this a 
time imperative thing? Are they being pressed by these proposed 
rules in terms of time? Is that their feeling?
    Ms. McClure. They are pressed by the lawsuits being forced 
to develop TMDLs and in some States feeling the pressure of 
impending lawsuits so they feel the pressure to develop TMDLs 
in a certain way.
    Senator Thomas. Is there any inclination, do you think, or 
are they interested in making some changes in their own 
operations to move along in these directions?
    Ms. McClure. Well, I think in some States we talked about 
their being forced to shift resources from other areas to deal 
with TMDLs and it may be sacrificing other areas of their 
program. So, States are certainly coming to attention in trying 
to develop TMDLs and deal with polluted waters.
    Mr. Guerrero. I would add, Senator, that the issue of 
resources comes up time and time again, the competition for 
scarce resources, the resources necessary to do the monitoring 
and to develop the data to implement this type of program and 
the data necessary to sustain it.
    It is an iterative process, as Trish said, where once you 
put in place best management practices you do need to monitor 
and assess whether they are achieving their intended results 
and you need to make adjustments over time. That additional 
monitoring cost is a resource issue.
    Senator Thomas. The cost, is it a need to implement what 
they already know or is it a lack of scientific data, technical 
data, analysis?
    Mr. Guerrero. I think what we tried to convey in our 
statement was that there just is a need for more comprehensive 
monitoring of the Nation's waters to have some greater 
assurance that the right bodies of water have been identified 
to go through this very challenging process.
    For those that there is confidence that the waters are 
impaired and there is a reasonably good understanding as to 
what those sources of impairment are, they can go down this 
route. But again, it needs to be an iterative type of process. 
It is a process where data will continue to be developed as 
practices are put in place over time and monitored for their 
effectiveness.
    Senator Thomas. So they generally feel as if they can do it 
given the resources and given the time if they are inclined. I 
guess I am also interested in how they see this is in terms of 
the division of responsibility of the States as opposed to EPA 
laying down the rules. How do they feel about that?
    Mr. Guerrero. Well, I think as you heard today from your 
colleagues here, there is a lot of concern out in the States 
that EPA's approach is too proscriptive and too top-down. EPA, 
of course, maintains otherwise, that they are trying to be 
flexible.
    I think the key will be how EPA responds to the numerous 
comments it has received to date from both you and from the 
public in response to the rulemaking.
    Senator Thomas. Responses from up here have been rather 
specific, I would say. Wouldn't you? Thank you very much.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you. I would like to followup with 
just a couple of questions, getting back to the line of 
questions that Senator Wyden began, namely the cost of 
compliance and the cost that we expect from the States.
    I recognize your answer that you haven't done that analysis 
yet, but I want to push you a little further and see if I can 
get a little more information.
    The EPA says they are going to do this on June 30th. Can 
you give us an answer by then?
    Mr. Guerrero. We will certainly aim to get you an answer by 
then if that is the Agency's date.
    Senator Crapo. I agree with Senator Wyden, and I'm sure 
Senator Thomas agrees. It's my understanding of the process 
that this analysis is supposed to have been done by the Agency 
on their part before they start so that they can determine 
whether the Unfunded Mandates Act applies as well as fulfill a 
lot of the other responsibilities for getting information.
    It is remarkable to me that we are here now essentially 3 
months from a deadline that is imposed on a fast track for this 
rule and we still don't know what the costs are.
    In our last hearing, you may or may not be aware that we 
had some pretty dramatic information presented about what the 
costs are going to be. That leads to my next question. The 
Unfunded Mandates Act requires, if I remember, the level that 
if it is over $100 million impact that the act then applies. 
The EPA has said that the cost of this is only going to be $25 
million. Do you have an opinion as to whether this is going to 
be more than $25 million?
    Mr. Guerrero. Well, that is exactly the questions we have 
been asked to answer. At this point we don't but hopefully we 
will in time.
    Senator Crapo. I can't even get you that far, right? Well, 
I do. I have an opinion on that. It seems to me that we are 
going to be looking at a figure that is a lot more than $100 
million.
    But the sooner we could get that information, the better. 
So I would encourage you to fast track your analysis so that we 
can keep up with this process.
    Mr. Guerrero. OK.
    Senator Crapo. Ms. McClure, you indicated in your answer 
that the EPA was doing something along this line of analyzing 
it cost-wise. Could you elaborate on that a little bit?
    Ms. McClure. I didn't mean to imply that they had not 
analyzed costs of the proposed rule, but, that they did in fact 
do an assessment of costs for the additional requirements over 
current requirements in the proposed rule.
    The separate study that I mentioned called the GAP analysis 
is a study that I think they initiated because they knew that 
water quality programs have historically been under-funded and 
that TMDL emphasis has shifted some resources away from other 
programs in water quality management programs within the 
States.
    So they wanted to get a complete understanding of the water 
quality management programs requirements for implementing the 
Clean Water Act.
    Senator Crapo. Is that information that they are working on 
in that study something that you are going to have to have for 
your evaluation of the costs?
    Ms. McClure. It is certainly something that we will look at 
as a source of information as we proceed.
    Senator Crapo. But you will not be relying on that? In 
other words, you are not going to wait to see what they do 
before you do your analysis?
    Ms. McClure. No.
    Senator Crapo. Can you finish your analysis without them 
finishing that study?
    Ms. McClure. I believe we can.
    Senator Crapo. We expect that a lot of people are going to 
be using the 305(b) report numbers in their testimony today. 
The questions is: Do you think that the EPA and others should 
be reaching conclusions based on this data and, in the EPA's 
case, producing a regulation based on this data?
    Mr. Guerrero. I think the data in the 305(b) report have to 
be very carefully qualified based on our work. The monitoring 
that is done is not comprehensive and the types of monitoring 
that are done differ from State to State.
    So, the 305(b) report, as one of the few national reports 
of water quality, has to be very carefully caveated as to what 
its limitations are and reaching conclusions from it have to be 
cognizant of those limits.
    Senator Crapo. Well, what I am hearing you say is that 
essentially we are in a large sense flying blind here, both in 
terms of the cost numbers as well as the terms of the data on 
which we are trying to analyze this proposed rule.
    Mr. Guerrero. We have two problems. One is that we don't 
have as comprehensive data as we need. Then for specific waters 
we just don't know enough about the sources of problems and the 
nature of those problems to effectively deal with them.
    Senator Crapo. Thank you. Did you have anything further?
    Ms. McClure. The data issue goes beyond just whether or not 
we can implement this proposed rule or are we representing 
water quality problems nationwide.
    I think there is wide agreement that we have a lot of water 
quality problems that we need to deal with. Now we are 
beginning to increase our investment in these areas. The need 
for good data and reliable information on the extent of the 
problem and whether we are addressing those issues effectively 
becomes that much more important.
    Senator Crapo. Thank you. I have no further questions.
    Senator Thomas, do you?
    Senator Thomas. No, thank you.
    Senator Crapo. All right. We thank you very much for your 
testimony and wish you Godspeed in preparing the report.
    Mr. Guerrero. Thank you.
    Senator Crapo. We would like to now call up the third 
panel, Mr. Robert Wittman, the supervisor of Westmoreland 
County in Montross, VA; Mr. David Skolasinski, district manager 
of Environmental Affairs from the Cliffs Mining Services 
Company; Ms. Nina Bell, executive director of the Northwest 
Environmental Advocates, Mr. Jeff Pardue, director of 
Environmental Services at Florida Power Corporation; Mr. Norman 
E. LeBlanc, chief of Technical Services at Hampton Roads 
Sanitation Districts.
    While the panel is taking their seats, let me check what 
the beeper is telling me.
    OK, I have a couple of instructions. First of all, the 
beeper and the bell says that we just had a vote call. It is my 
understanding that there will be two votes stacked. So I can't 
just run over and vote and the other Senators who may be trying 
to get here can't just vote and come back.
    But what I think that I will do is, we will go ahead for 
about 10 minutes so that I get quite a ways into this vote so I 
can run over and vote and then hopefully the next vote will 
take place shortly thereafter and I can cast that vote and get 
back here and resume the hearing.
    We may have to take a break until I can get over and get 
the vote finalized. So, to the witnesses and to those here for 
the hearing, I apologize. There will be a short recess and I 
will make it as short as possible so that we can then resume.
    The other thing is, as you can see this is a large panel 
and we have another large panel following it. So I ask you to 
please watch the clock and if necessary, I may interrupt you 
and ask you to bring your testimony to a close after 5 minutes. 
The yellow light means there is 1 minute left. When the red 
light comes on, I would ask you to try to sum up to where you 
are as quickly as possible.
    I will assure you that I have and the other Senators will 
review your testimony very carefully. It will be a part of the 
record. It is made available for the public. Our staff also 
will be reviewing it very carefully. So, if you don't get a 
chance to say everything, and you never do, please be assured 
that what you have to say will be very closely evaluated.
    With that, why don't we start and try to get a couple of 
you before I have to run over for the vote. Let's start out in 
the order that we introduced you.
    Mr. Wittman.

   STATEMENT OF ROBERT J. WITTMAN, SUPERVISOR, WESTMORELAND 
                      COUNTY, MONTROSS, VA

    Mr. Wittman. Thank you, Mr. Chairman. I am pleased to be 
here today to testify on behalf of local governments in the 
middle Atlantic region and on behalf of the Virginia-
Rappahannock River Basin Commission concerning the 
Environmental Protection Agency's proposed changes to the 
national TMDL program.
    Local governments in the mid-Atlantic region and the 
Virginia-Rappahannock River Basin Commission are major 
stakeholders in the Chesapeake Bay Program which stands as a 
highly successful alternative to the traditional Clean Water 
Act command and control approach.
    It is based upon partnership and is successful because it 
depends principally on agreement rather than mandate to achieve 
its goals.
    The Bay Program is very similar to the TMDL program. For 
example, each Bay's signatory jurisdiction is implementing a 
tributary strategy process geared toward identifying and 
achieving stakeholder-developed restoration goals. These 
tributary strategies account for all loading sources and are 
blueprints for achieving and maintaining desired pollutant load 
reductions from a wide array of point and nonpoint sources.
    The Bay Program will achieve the same end points as would a 
properly implemented TMDL program. It will do so without resort 
to a Federal mandate. That means greater flexibility to develop 
and implement the most cost-effective controls at a much faster 
pace than would be possible under the TMDL program as we know 
it.
    The Bay Program is a performance-based approach where 
innovation is stimulated and stakeholder initiated water 
quality solutions are accelerated. The advantages of these 
performance-based programs are that they stimulate innovation 
in water quality improvements, they stimulate stakeholder 
initiated water quality solutions and they accelerate the 
protection and restoration of water quality nationwide.
    We believe that TMDL rules must accept and encourage non-
traditional stakeholder initiated efforts such as the Bay 
Program and the Rappahannock River Basin commission.
    The proposed TMDL rule has several disadvantages. It 
eliminates the alternative pollution control programs. It does 
not recognize non-command and control approaches in water 
quality programs. The proposed TMDL rule should empower State 
and local governments as well as other stakeholders nationwide 
to engage in water quality restoration efforts.
    My experience has been locally that community-based 
cooperative programs can be highly successful in achieving 
significant water quality improvements. The proposed TMDL rule 
must accommodate and encourage the development of non-
traditional water quality initiatives and recognize the vital 
role that alternative programs like the Chesapeake Bay Program 
play today in water quality improvement efforts.
    It also must promote an even greater role for existing and 
similar initiatives going forward and ensure that the States 
will have the flexibility to integrate effective non-
traditional approaches.
    The signatories to the Bay Agreement have agreed to embark 
on an unprecedented process of integrating the TMDL program 
into the Bay Program. They are committed to giving the 
opportunity to remove impairments before establishing one or 
more TMDLs for the bay.
    Avoiding TMDL establishment is a powerful incentive for 
expeditious implementation of water quality controls under the 
Bay Program.
    We ask the subcommittee and the full Environment and Public 
Works Committee to ensure the final TMDL rule allows the 
seamless integration of the Chesapeake Bay Program and 
stakeholder-based programs in your States with the TMDL 
program.
    We believe that there are several obstacles, though, to 
this integration effort. EPA and States should not be required 
to use NPDES permits as the sole mechanism for implementing 
TMDLs for point sources.
    There are a wide variety of mechanisms that have been 
successfully employed to achieve the Bay Program's nutrient 
reduction goals. Some are regulatory in nature. Some are not. 
But none are Federal mandates.
    Virginia and Maryland have utilized grant agreements as 
mechanisms to implement biological nutrient reduction at 
publicly owned treatment works. They have signed many, many 
agreements. These grant agreements provide up to 50 percent 
grant funding and have total to date hundreds of millions of 
dollars of investment into biological nutrient reduction. Not 
one of these publicly owned treatment works has refused to 
execute a grant agreement when offered the opportunity.
    The proposed TMDL program threatens to replace the 
cooperative grant agreement programs in Virginia and Maryland 
with NPDES permit limits.
    EPA should give us the opportunity to remove impairments 
before TMDL is established. The Bay Program will have little 
meaning if one of its most accepted and successful 
implementation mechanisms is replaced by Federal mandate.
    We ask that EPA improve on its draft proposal by restoring 
the Bay States' discretion to continue to utilize grant 
agreements as its primary mechanism for implementing point 
source nutrient controls.
    We do not want States to be precluded from using nutrient 
limits, only that their discretion to use grant agreements and 
other mechanisms be preserved.
    The second obstacle to the integration effort is EPA's 
offset requirement. We feel it is unnecessary under the 
Chesapeake Bay TMDL integration process. The bay agreement 
contains an interim cap strategy that has the same goal as the 
EPA's offset rule, that is, to avoid increased loadings of 
pollutants contributing to the bay's impairment until loading 
capacities for the bay and its tidal tributaries are identified 
and allocated.
    The Bay Program loading cap will apply to far more sources 
than would be possible under the EPA's TMDL program. EPA's 
offset proposal threatens to bring to a halt continued 
voluntary point source nutrient reductions.
    Publicly owned treatment works in the bay watershed have 
and continue to voluntarily install nutrient controls based 
upon Federal and State assurances that they will not be 
penalized for such efforts.
    Their reliance on these assurances may have been misplaced. 
The publicly owned treatment works that voluntarily install 
nutrient controls may lose offsets from these upgrades that 
they will need for future growth.
    This uncertainty is sure to slow if not halt commitments by 
point sources to voluntarily reduce their discharge of 
nutrients. The offset rule is also inconsistent with the 
promising concept of smart growth. With the reality that urban 
waters do not consistently and never will meet today's 
stringent water quality standards currently in place, the 
offset rule provides a strong disincentive or even prohibition 
on renewal projects. This pushes growth to undeveloped green 
field areas which promotes sprawl and the degradation of more 
healthy and productive watersheds.
    Finally, I urge you and your colleagues to require the EPA 
to hold a second public comment period on the agency's proposed 
revisions to the TMDL rules. A second opportunity is warranted 
given the sheer number of comments the EPA received, as well as 
the number of open-ended questions on which EPA sought public 
comment.
    This will hopefully provide an opportunity to comment on a 
more focused proposal from EPA and is a matter of fundamental 
fairness in this instance.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Wittman. I think 
that because of the time I am going to recess the hearing at 
this point and, as I said earlier, I will return as quickly as 
possible after the second vote that takes place.
    Thank you very much. The hearing is in recess.
    [Recess.]
    Senator Crapo [resuming the chair]. The hearing will come 
to order.
    I thank everybody for your patience and as soon as the 
bells quit ringing here we will start right up again.
    Mr. Skolasinski, would you like to begin?

STATEMENT OF DAVID SKOLASINSKI, DISTRICT MANAGER, ENVIRONMENTAL 
AFFAIRS, CLIFFS MINING SERVICES COMPANY, DULUTH, MN, ON BEHALF 
    OF THE NATIONAL MINING ASSOCIATION AND THE IRON MINING 
                    ASSOCIATION OF MINNESOTA

    Mr. Skolasinski. Mr. Chairman and members of the 
subcommittee, my name is Dave Skolasinski. I am pleased to be 
here today to testify on behalf of the National Mining 
Association as the chairman of the Environmental Committee for 
the Iron Mining Association of Minnesota.
    In my 26 years of environmental management experience with 
the mining industry, this TMDL proposed rule worries me and 
worries me for the future of my industry more than any other 
regulation I have dealt with in my career.
    I want to focus my comments today on three particular 
aspects of the rule. These are historic legacy pollutants, 
mandatory offset provisions, and the alternative solutions that 
we would like to address.
    The historic legacy issues are involved in impairment of 
water quality due to historic pollution problems, and these 
often manifest themselves in relation to contaminated sediments 
and many natural sources of materials, of pollutants. Some of 
these natural sources include forest fires, volcanic activity, 
and also naturally occurring metals in certain geologic 
locations. Often these naturally occurring metals manifest 
themselves in water quality and lead to the discovery of ore 
bodies for the mining industry.
    In addition, there are certain industrial processes that 
have added to the legacy problems. In northeastern Minnesota 
the specific example of one of these issues, is contaminated 
sediments. With relation to mercury what we find is that 90 
percent of the mercury that is currently in the State's waters 
is originating from outside of the State and moves into the 
State through air deposition.
    The sources of this mercury are both from national and 
international sources. Under the TMDL rule, even if you brought 
all of the point source dischargers to zero with mercury you 
would not have any measurable effect on the mercury in the 
water or in the fish tissue that is there, again as a result of 
this 90 percent addition from the outside.
    In addition there are other naturally occurring sources of 
other metals and in these situations again the TMDL-derived 
limits on point sources will never achieve water quality 
standards.
    Under the mandatory offsets these are required for new and 
increased discharges of pollutants into listed waters.
    Again, in my example of northeastern Minnesota, the entire 
region is listed, all waters in the region are listed as 
impaired for mercury. Under this situation there literally are 
no offsets available. Even if an offset became available in the 
future, it is unlikely that any entity who had that offset 
would ever sell it. They would hold it for their own reserve, 
for their own future expansion.
    Now, unfortunately, in the mining industry we have to mine 
our ore bodies where they are found. We can't pick up and move 
as some other industries might to a different area. We have to 
be very cognizant of what the economic impacts of complying 
with these regulations would be because we have to compete on 
the international markets. We cannot pass on these costs to 
consumers.
    Another example of this is that we have a municipal waste 
water consolidation project in progress in the region whereby a 
number of small communities that provide minimal treatment of 
their sewage effluents intend to consolidate and pipe their 
effluents down to a regional facility to provide better 
treatment.
    However, this is going to result in an increase in the 
mercury discharge at the regional plant. Because there are no 
offsets available, this project may be prohibited from going 
forward. So the result is continued poor quality discharges 
going out from these small treatment plants.
    As far as alternative solutions, one of the things we would 
like to promote is that the States be given the flexibility to 
develop local solutions to their specific problems. The 
watershed approach is certainly one of the things that we 
promote and especially through voluntary efforts.
    In Minnesota right now we have a voluntary mercury 
reduction program where through this program based on 1990 
inventory levels there has been a 50 percent reduction of 
mercury and we are hoping to meet a 70 percent reduction by 
2005. This program is well underway and quite successful to 
date.
    In addition, we are developing a TMDL program for our local 
river system and this is in its early stages. But we are 
fearful that the prescriptive nature of the TMDL program may 
bring this process to a premature close.
    In conclusion I would like to urge you to request that EPA 
slow down and carefully address the comments that have been 
submitted to date and to focus on developing an approach that 
properly addresses the problems with the rule. Thank you very 
much.
    Senator Crapo. Thank you very much.
    Mr. Skolasinski. I would be happy to answer any questions 
that you may have.
    Senator Crapo. I appreciate that. I should tell you, my 
wife is from Minnesota so I have a special affinity for that 
place, too. It's just about as good as Idaho.
    Ms. Bell.

     STATEMENT OF NINA BELL, EXECUTIVE DIRECTOR, NORTHWEST 
             ENVIRONMENTAL ADVOCATES, PORTLAND, OR

    Ms. Bell. Thank you. Mr. Chairman and members of the 
committee, my name is Nina Bell. I am executive director of 
Northwestern Environmental Advocates. I work in Portland, OR on 
Oregon and Washington water quality issues.
    I was also a member of the EPA's Federal Advisory Committee 
on this TMDL rule.
    Today I would like to briefly explain what the law is 
regulating point sources through the NPDES permit program and 
place that in a practical context. Simply put, the Clean Water 
Act requires point sources to meet water quality standards or 
put it another way, not to cause or contribute to water quality 
standards violations. That is sections 301 and 302 of the Clean 
Water Act and EPA's implementing regulations.
    In order to carry out those restrictions on point sources 
and to achieve an equitable result, equitable between point 
sources and between nonpoint and point sources in a water body 
or watershed we need two things. First we need TMDLs because 
TMDLs allow us to allocate responsibility for pollution 
reductions from all sources in evaluating their cumulative 
effects on a water body.
    We cannot determine if point sources are causing or 
contributing to water quality standards violations in the 
absence of a TMDL.
    Second, we need nonpoint source controls. Under both the 
existing act and EPA's proposed rules, nonpoint source controls 
are not federally regulated and, in fact, TMDLs themselves are 
not permits. They are, because of the uncertainty that we have 
already heard about today in terms of regulating nonpoint 
sources or even not regulating them but understanding what 
controls will result in reductions of pollution loads.
    They are by nature subject to an interim process meaning 
that they need to be adjusted over time and have a review 
afterwards. That is a fact with EPA's proposed regulations on 
implementation plans, this idea of the iterative process.
    Finally, the reason why the Federal Advisory Committee 
recommended implementation plans, because they understood the 
importance of that and included 4 pages of detailed content for 
this implementation plan.
    Implementation plans will align the multiple different 
types of nonpoint source controls that are out there already 
and provide for seamless connections between the technical 
analysis of a TMDL and the actions that need to be taken.
    This is necessary for point sources in order to meet legal 
requirements.
    In summary, EPA's rule did not overstep statutory 
authority. The proposal is not perfect but it will lead to 
improved equity and environmental protection. It will maintain 
substantial State flexibility that already exists in water 
quality standards, nonpoint source programs and allocations 
made at the local level.
    Last, the TMDL program remains necessary to protect the 
public health, for fish and for wildlife, the promise that the 
Clean Water Act made to the public in 1972.
    Thank you.
    Senator Crapo. Thank you very much, Ms. Bell.
    Mr. Pardue.

  STATEMENT OF JEFF PARDUE, DIRECTOR, ENVIRONMENTAL SERVICES, 
         FLORIDA POWER CORPORATION, ST. PETERSBURG, FL

    Mr. Pardue. Thank you, Mr. Chairman. I am Jeff Pardue, 
director of Environmental Services at Florida Power 
Corporation. I am testifying for Florida Power Corporation, the 
Edison Electric Institute and the Clean Water Industry 
Coalition.
    We are pleased to testify on EPA's proposed revisions to 
the TMDL program. I will summarize our concerns emphasizing how 
State initiatives to improve water quality will be undermined 
if the agency's proposals are finalized.
    We are firmly committed to effective watershed management 
strategies as the best way to approach our remaining water 
quality problems. These problems are more challenging, complex 
and varied than those of the past.
    Solving them requires better knowledge, objective water 
quality standards and more comprehensive, valid and accurate 
data. The effort also requires time, a commitment of resources 
and a flexible iterative approach to managing aquatic 
ecosystems and accommodating the tremendous variations that 
occur between water bodies.
    TMDLs can be a useful tool to improve water quality. We 
don't believe, however, that Congress intended the TMDL 
provisions to be the central means for resolving all water 
quality problems.
    We fear that EPA's proposals will impede further 
development of successful watershed management strategies. Such 
strategies have both regulatory and non-regulatory elements and 
allow States to make water quality progress in the face of 
uncertainty.
    It makes a difference how these parts are combined. EPA's 
proposed rules, with its rigid requirements and Federal 
approvals are inflexible. Even if the agency grafts into this 
structure an accommodation for voluntary steps, the rules will 
still jeopardize the best features of successful watershed 
strategies.
    Mr. Chairman, Florida Power Corporation is proud of our 
contribution to improving water quality. In 1999 we helped 
Florida develop a TMDL statute to meet the requirements of 
section 303(d). Stakeholders worked with legislators to craft a 
scientifically driven listing process that is followed by an 
equitable allocation among sources in a site-specific and cost-
effective manner.
    Florida proceeded with the understanding that its new TMDL 
law met Federal requirements. Our law and its success is now in 
jeopardy because in settling a lawsuit EPA has committed to a 
Federal takeover of Florida's activities if the State does not 
meet certain deadlines. But deadlines cannot be met under 
Florida's Administrative Procedures Act.
    Mr. Chairman, I will outline some specific concerns we have 
with the proposed rules. EPA wants to finalize the proposed 
rules by June 30, 2000. We believe it is more important that 
the rule be done right rather than quickly. This is a 
discretionary, not a required rulemaking.
    Dischargers face increased production costs, curtailed 
economic growth and the possibility of mandated operational 
modifications if they are located on or near a listed water.
    The agency, therefore, should insist on the use of high 
quality, monitored data for listing and TMDL development. We 
think EPA's proposed listing criteria is too broad and defeats 
the purpose of identifying and prioritizing truly impaired 
waters. Listing waters that are threatened, impacted by 
pollution, air deposition or unknown causes should be 
approached through other Clean Water Act tools.
    The TMDL program should encourage the most cost-effective 
pollutant reductions. This cannot be accomplished if the offset 
provisions and other enforceable regulatory restrictions are 
imposed prematurely on point sources.
    We believe that States are in the best position to manage 
impaired waters. EPA should not write rules that pre-judge the 
outcome of a TMDL.
    Mr. Chairman, we hope the subcommittee will consider 
whether EPA's proposal is good public policy and can work in 
practice. We also hope you will consider at least taking the 
following steps: Prevailing on EPA to take the time to get the 
rule right; providing more funding for monitoring and data 
collection by the States; assuring that the data used for 
listing and TMDL development is high-quality monitored data; 
and clarifying that States have the authority to evaluate and 
conclude that current watershed strategies, habitat 
conservation plans, and environmental decisions made under 
other environmental statutes are adequate to meet water quality 
standards and therefore do not have to be reopened under the 
TMDL program.
    Finally, we encourage you to review the resource needs of 
State and local governments and the costs of the entire TMDL 
program. You will then be better able to evaluate the merits of 
the agency's proposed rules and appropriately address the 
substance and funding issues.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Pardue.
    Mr. LeBlanc.

 STATEMENT OF NORMAN E. LeBLANC, CHIEF OF TECHNICAL SERVICES, 
     HAMPTON ROADS SANITATION DISTRICTS, VIRGINIA BEACH, VA

    Mr. LeBlanc. Mr. Chairman and members of the subcommittee, 
my name is Norm LeBlanc. I am chairman of the Water Quality 
Committee of the Association of Metropolitan Sewerage Agencies 
or AMSA.
    I have served on the front lines of the campaign to clean 
up the Nation's waters for nearly 30 years. The last 20 have 
been managing the Environmental Permitting and Compliance 
Programs for 13 of the Hampton Roads Sanitation Districts' 
treatment plants. That is in southeastern Virginia.
    I greatly appreciate the opportunity to share with you the 
experiences of the waste water treatment community with regard 
to the Clean Water Act and more specifically TMDLs.
    AMSA represents more than 240 municipal governments. Its 
members treat 18 billion gallons of waste water every day and 
provide service to the majority of the sewered population of 
the United States.
    AMSA members hold NPDES permits and many such as myself 
have discharges that are located on 303(d) waters.
    As veterans in the water pollution field, we are 
sympathetic to the gaps in our economic and scientific data, 
lack of funding and the absence of a consistent, comprehensive 
mechanism for monitoring and regulating nonpoint sources.
    However, if States ultimately are not authorized to develop 
TMDLs that require load reductions from nonpoint sources, EPA 
and the States will be forced to rely exclusively upon point 
sources that secure the pollutant load reductions necessary to 
meet the water quality standards as required in the Clean Water 
Act.
    AMSA supports the provisions in the proposed rule for 
equitable controls on both point and nonpoint sources, State-
developed implementation plans and the requirements for States 
to develop sound methodologies for listing and priority 
rankings.
    That last point I need to emphasize because we cannot 
afford any more ``drive-by TMDLs'' that are based on little or 
no data.
    The recent draft TMDLs that are being produced, now that we 
have a chance to look at them, show a real lack of resources 
and a lack of understanding of holistic solutions to attain the 
requirements in the Clean Water Act, sometimes euphemistically 
called ``nitwit science.''
    The proposed rule makes it clear that addressing nonpoint 
sources is critical to the TMDL program. In fact, the TMDL 
program cannot move forward unless nonpoint sources fully 
participate.
    Specifically, we recommend proportionate responsibilities 
be adopted in allocation of pollutant loading reductions as 
well as parallel implementation of compliance schedules in 
blended waters where both point and nonpoint sources exist.
    While supportive of some of the proposed changes, AMSA does 
have major concerns with the overly broad approach EPA has 
chosen for a listing criteria and expansion of the authority in 
the permitting issuing process.
    EPA's proposal inappropriately expands its statutory 
authority to require a listing of waters under 303(d). Issues 
such as MCLS, threatened waters, fish advisories, 
antidegradation, and pollution should not be considered in the 
listing under 303(d).
    Listing should be limited to impairments caused by 
pollutants from either point or nonpoint source water 
discharges that are controllable under the Clean Water Act. In 
other words, if the Clean Water Act cannot fix the problem, 
then it should not be listed under 303(d) of the Clean Water 
Act.
    AMSA has major problems with the proposed changes to the 
NPDES permit and the antidegradation policy. Dischargers 
wishing to increase loadings to TMDL-listed water segments 
should not be bound by any kind of mandatory offset provision.
    The regulations should recognize that increased loadings 
from point sources may be insignificant compared to the total 
loadings to the system. Therefore, any reasonable further 
progress provision must be extremely flexible and both 
pollutant as well as site-
specific.
    We believe that it is crucial that existing permit limits 
remain in place until the TMDL has been finished and approved. 
Right now POTWs are facing NPDES permit changes as soon as the 
water is listed, before the TMDL process even begins.
    This is very problematic to municipal governments because 
we must have a defined long-range plan for improvements to the 
treatment process. Frequently changing permit conditions can 
cause a great deal of wasted resources because the processes 
that you install to meet an interim limit may be completely 
incompatible with the processes that you will ultimately need 
to meet your TMDL load allocation.
    We are also concerned about the lack of flexibility in 
implementing control measures. EPA and the States are relying 
exclusively on permit limits, failing to recognize that there 
may be more effective and less costly alternatives for 
implementing TMDLs for both point and nonpoint sources.
    We concur that EPA and the States need the authority to 
impose permit requirements on all sources that fail to 
cooperate in the TMDL process. However, they should be 
considered the least favored option and one of last resort.
    HRSD is a main player in the Chesapeake Bay and I 
wholeheartedly support the statements by Mr. Wittman that EPA 
should include provisions in the TMDL rules that recognize 
alternative, non-traditional ways of dealing with water quality 
problems.
    Finally, but of equal importance, is the very basis of the 
TMDLs themselves. The entire focus of the TMDL program is to 
achieve designated uses and supporting criteria. In fact, most 
uses were established 30 years ago without much scientific 
analysis, with little or no policy debate and certainly without 
the regulatory consequences that we have today.
    They were in essence wish lists which have now become 
mandatory requirements. We are now finding out that in many 
cases those uses may not either make sense or may not be 
attainable.
    Before we spend billions of dollars and millions of hours 
nationwide on a TMDL program we need to ensure that our water 
quality goals, that is the very foundation, the very basis of 
the TMDL program are both achievable and sensible from an 
economic and scientific point of view. That is why we strongly 
urge EPA to revisit the water quality standards rules before 
embarking, on a massive, nationwide TMDL effort.
    We concur, Mr. Chairman, with the remarks that you made 
earlier today about the American public needing a full 
accounting of the TMDL program, what it costs in order to 
obtain the data in order to do the TMDLs, and to comply with 
the requirements of the TMDL itself.
    On behalf of the municipal waste water colleagues, I thank 
you for the opportunity to present these comments to the 
subcommittee.
    Senator Crapo. Thank you very much, Mr. LeBlanc.
    I would like to address a question and talk about an issue 
that each member of the panel has in one way or another address 
and just flush it out a little bit more.
    The issue is there seems to be a tension between the 
concept of how we regulate point source versus nonpoint source 
water quality problems both in terms of whether there is 
jurisdiction under the act to do so and there is a disagreement 
among people about whether there is even jurisdiction to do so.
    Second, in terms of how it is done and whether the way we 
approach it may end up pushing the burden more one way or the 
other way than is properly allocated.
    Let me go with the first part of that, the jurisdictional 
question. Ms. Bell, you addressed that most directly in your 
testimony. It seems to me that the position of those who say 
that the rule is not seeking to expand EPA jurisdiction over 
nonpoint source pollution beyond its current authority is based 
on the argument--and I want you to tell me if I am wrong in 
understanding this--is based on the argument that EPA is simply 
requiring the States to establish the TMDLs and come up with a 
plan and the plan that the States come up with is up to the 
States and therefore the EPA is not mandating that they do 
anything necessarily with regard to the nonpoint sources.
    Am I correct so far?
    Ms. Bell. Yes.
    Senator Crapo. To me there is a problem with that, though, 
because we have had other witnesses tell us and I have talked 
with people privately who indicate that as a pure technical 
matter that may be true but that the States have to then exert 
regulatory authority over the nonpoint sources in order to have 
their compliance plan work and if they don't and if the EPA is 
not satisfied with what the States do, the EPA can step in and 
take over and do it itself. Am I getting off course yet?
    Ms. Bell. Now you are off course.
    Senator Crapo. OK. Would you clarify that to me?
    Ms. Bell. Well, first of all, EPA has always taken the 
position, and I think still takes the position, that nonpoint 
sources can be regulated at the State level or can be subject 
to incentive programs, what I call pseudo-regulatory programs 
of which we have some in Oregon, and completely voluntary 
programs.
    It is simply a matter of making sure that those are 
effective. I would hope that the TMDLs that get produced, 
individual TMDLs, have the effect of kind of shining a light on 
ineffective programs, thereby achieving both pollution 
reductions from nonpoint sources and equity between point and 
nonpoint sources.
    On the second issue about if EPA, when it does its 
statutorily required approval or disapproval of the TMDL that 
has been submitted by a State, finds that the State's programs 
are not sufficient, that is where actually EPA is in a bind 
because it is required by law to promulgate a different TMDL.
    But it cannot come in and substitute Federal programs for 
the lack of State programs because it doesn't have any 
statutory authority to do so. That, of course, is the 
underlying basis for the silvicultural rule which is an attempt 
to regulate point sources, not nonpoint sources.
    But in any case, there is no other alternative for EPA 
because of the limitations of the statute.
    Senator Crapo. So then at the point where the EPA steps in 
and says, ``you haven't done it right'' to the State, your 
understanding is that the EPA has no authority to then go and 
do it right other than to create the correct--in their 
opinion--the correct TMDL.
    Ms. Bell. Well, this is a problem that we talked about on 
the FACA quite a bit. I think part of the reason why point 
sources should be concerned is where you have waters with 
combined point and nonpoint sources affecting the water body, 
if EPA were to come in and say, ``Well, you know we need to 
revise the numbers'' or there could be all sorts of problems 
with the TMDL, but one of the areas might be that the 
allocations, the relative amount of reduction required by point 
sources and nonpoint sources might need to be adjusted.
    There you have EPA needing to use its authority under the 
Clean Water Act to perhaps put more of the responsibility by 
allowing less pollution from point sources.
    That is one way of cleaning up a water body in some 
instances. But as my written testimony says, lots of times that 
is not true. But I don't think that is equitable. I ultimately 
think that it also doesn't serve the economic interests of this 
country to create that kind of inequity.
    Senator Crapo. So EPA is left with then moving back to the 
point sources to find all of the correction that it sees 
necessary is what I heard you saying.
    Ms. Bell. That and also using what other Federal tools are 
available. They may not be regulatory. The 319 grant programs, 
for example, could be focused.
    Senator Crapo. Sure. Incentives and so forth.
    Ms. Bell. That is right.
    Senator Crapo. Would any other members of the panel like to 
comment on this issue?
    Mr. LeBlanc. Well, I concur, and one of the things that we 
are concerned about is the point sources being held hostage 
because of the inability to get the water back into compliance 
with the water quality standards.
    If the controls on the other sources cannot bring that back 
down, then when we come up for permit re-issuance every 5 years 
they look at that permit re-issuance and say, ``We cannot renew 
it; you are going to have to reduce your loadings by this 
amount in order to meet water quality standards.'' The problem 
right now, in the Bay Program we get credits; not that the 
water is improving right now, it is going to take 10 or 15 
years for the water to improve from nonpoint source issues 
because sometimes they are very slow in reacting.
    But the implementation plan in the Bay Program says, 
``Well, they are going to do this, therefore we can allow you 
to do this.'' Even though in the short term you may have some 
noncompliance issues, we are doing our part and nonpoint 
sources are doing their part. That is where the implementation 
plans come in.
    I am not a lawyer. I am a technical individual. Whether 
they need to be legal or not, I cannot comment on that part of 
it.
    Senator Crapo. Right. Are there any others?
    Let me come back to you, Ms. Bell, with just one other 
question. In terms of understanding how we approach this, do 
you believe the EPA has authority under current law to come up 
with an implementation plan?
    Ms. Bell. Yes, I do. Clearly it has it under section 
303(e). I don't think there should be even any debate on that 
issue. But I also think EPA has the discretion to include in 
the definition of a TMDL that which it thinks will help make 
the TMDL program work.
    Again, since the implementation plan is also not 
enforceable, it is not something that EPA is sort of creating 
out of whole cloth.
    From a policy standpoint as well, it makes good sense 
because it does create, as Mr. LeBlanc said, perhaps different 
time lines for attainment of allocations by different sources 
and it sets out the connection between all the money we are 
going to put into the scientific and technical analysis in the 
TMDL part and the control actions that people are either going 
to be required to or volunteer to take or be induced to take 
through incentive programs.
    It puts those two things together so we are no longer sort 
of operating in the dark as much as we have been.
    Senator Crapo. Now on this implementation plan, many 
members of the panel talked about the need for flexibility to 
recognize other ways that the States are already traveling to 
try to address these issues.
    This is a question to anybody on the panel who would like 
to jump in on it. Does the mandate that the State include an 
implementation plan as part of the TMDL become a part of the 
problem of rigidity that then forces the States away from some 
other solutions or is there some other problem in the rule that 
is causing the lack of flexibility on the part of those who 
believe there is that lag?
    Mr. LeBlanc. One of the problems that we had, and we had 
quite a bit of internal debate with AMSA on the rule as to 
whether or not the implementation plan should be part of the 
approvable aspect of the TMDL.
    It depends on whether one comes from a State that is 
effectively working with nonpoint sources or a State that is 
not effectively working with nonpoint sources as to whether you 
like the idea of Federal enforceability of an implementation 
plan or not.
    Senator Crapo. Do you agree that it is not enforceable? Ms. 
Bell believes that it is not enforceable.
    Mr. LeBlanc. That is correct. I believe that the TMDL 
proposal is trying to make it an enforceable part, but that 
doesn't say it is. As I say, it is difficult, depending on 
which State you are, to say whether you like it or not on a 
Federal enforceable level.
    Senator Crapo. Do any others want to jump in on that?
    Ms. Bell. Well, I would like to add something.
    Senator Crapo. Sure.
    Ms. Bell. We did talk on the FACA about the idea of 
substitutes for TMDLs and after some debate I think, and I 
always hesitate to actually reflect what the committee came up 
with lest I be torpedoed by the people in the back there.
    But I think that we agreed that if there were alternative 
programs that met the analysis and the intent of the TMDL that 
they could be submitted as a TMDL. Likewise, if they were 
three-
quarters of the way down the TMDL they could be augmented and 
submitted to EPA as a TMDL.
    I think that analysis pretty much carries over to the idea 
of the implementation plan as well. I would not expect any 
implementation plan to include all new programs.
    What I would expect is sort of an alignment and 
coordination of all existing program with some focus on those 
areas where help was needed to improve nonpoint source programs 
and then all the other pieces of the implementation that have 
been proposed such as followup monitoring, timeframes to go 
back and incorporate the results of monitoring and those kinds 
of things.
    Senator Crapo. Mr. Wittman, I took from your testimony that 
you would probably conclude that the proposed rule would 
actually impede the efforts that you are underway with in your 
area. Am I right in that and if so, why wouldn't there be 
flexibility in the system to just create an implementation plan 
that does what you are already doing?
    Mr. Wittman. Well, again, I think an implementation plan, 
at least the way local governments look at that, look at it as 
a fairly rigid document. I can tell you in some of our 
experience in trying to address water quality issues locally, 
it takes some trial and error efforts in order to get to a 
point where you find things that actually do work.
    When we begin to work with farmers and with 
silviculturists, we find that some of the best ideas come from 
them and we need to be able to be flexible to sort of change 
the plan as we go.
    We have worked with trying to create community groups that 
actually have an interest in their smaller watersheds and they 
come up with development plans and action plans. Those things 
are far outside of the stock implementation plans that we have 
in mind that EPA is requiring under this rule.
    Senator Crapo. Thank you.
    Mr. LeBlanc, you were about to say something; weren't you?
    Mr. LeBlanc. Yes, Mr. Chairman. From the nonpoint source 
side of it, the implementation plan of the Chesapeake Bay 
Program, probably the TMDLs could make it more rigid on 
nonpoint source side than what it is right now.
    But on the point source side, the Bay Program is not really 
considered a TMDL. EPA is now viewing it as a way to avoid the 
TMDL. If the program will work and get us off of listing by 
2010, then the TMDL goes away. If not, in 2010 the TMDL gets 
implemented.
    Now what that means is that those of us, particularly on 
the hardware side of things, the point source sides of things, 
who are embarking on agreements with the State to install 
biological nutrient removal processes using less traditional 
approaches that are essentially more cost effective. 
Essentially, they put in BNR at much less cost than the 
traditional point source, NPDES monthly/weekly average limits.
    The problem we face right now as point sources, do we enter 
into this agreement with the State now, put this process in 
place, and if the Voluntary Chesapeake Program process doesn't 
work, then everything gets thrown out and we have to redo it 
all as a TMDL, rebuild the tanks, reput in our infrastructure, 
because all of a sudden the agreements that we had on how we 
operate our BNR facilities are no longer applicable under the 
TMDL.
    So, it is kind of a line in the sand. It is not embracing 
the Bay Program and saying, ``Yes, we would like to move this 
forward.'' It is a way of avoiding the TMDL hammer.
    Senator Crapo. Now you also said in your testimony that the 
fact that when a permit is changed upon the listing for the 
TMDL and that that causes a diversion of resources, if I 
understood you correctly; is that right.
    Mr. LeBlanc. Yes. I mean that problem is that when the 
permit comes up for renewal and you are on a listed water that 
doesn't meet water quality standards, you get some very 
stringent permit limits that largely assume that the nonpoint 
source side is not going to do a lot, or whatever the science 
says that they might be able to do, you can only get partial 
credit for it.
    It is pretty much a point source issue. You have to comply 
with water quality standards. The TMDL, on the other hand, will 
work toward reducing nonpoint source loads in the other non-
traditional ways and allow you to get more credit and not have 
as stringent limits.
    That is where the problem comes in, what do we build for? 
Do we build now for the more stringent? Some of the TMDLs, the 
draft TMDLs that we have out there right now are saying that, 
``Well, we are going to put an end of pipe limit on these point 
sources now and if we come back later and we find out there is 
more allocation, you are not going to get any of it.''
    These are the issues that we have on this phasing of 
permanent limits. We believe there are ways of getting further 
progress from point sources to improve discharge situations in 
listed waters without having to modify the permit limits up 
front until the TMDL is done.
    Senator Crapo. All right.
    Mr. Pardue, one of the four points you made at the 
conclusion of your testimony is that we need to be sure that 
the States have the authority to evaluate the efficacy of the 
activities they are taking. Could you expand a little bit on 
your concept there?
    Mr. Pardue. Well, as a practical matter, many of the 
remaining water quality programs that we have are very 
complicated and they are not easily addressable by pointing a 
finger at the point sources.
    Most of us that have point source discharges have been 
regulated for many years. The remaining problems are also site 
specific and local in nature. The best way to address those is 
to bring all of the players to the table as we have done in the 
Tampa Bay area with the Tampa Bay Estuary Program.
    Getting all the stakeholders together to come up with 
innovative ways to address remaining pollution problems has 
proven successful. The problem we have with EPA's oversight 
role in that is that EPA tends to take a very prescriptive view 
of anything that a State is doing and measure it against some 
standard.
    We need to preserve the flexibility for local governments, 
local agencies and State agencies, to use their judgment in 
what works best in their waters.
    Senator Crapo. The concept that I kind of hear you talking 
about there is that perhaps we have a Federal standard for what 
the quality of the water should be but let the States figure 
out how to do it.
    Mr. Pardue. That is correct.
    Senator Crapo. Without having it be so prescriptive that 
there is only one narrow opportunity to do it.
    Mr. Pardue. That is correct.
    Senator Crapo. In that context, it seems to me that the 
more complicated or prescriptive the definition of the TMDL is 
or the requirements for the implementation are, then the less 
flexibility the States have as they seek to find solutions. Am 
I seeing it the way you are trying to explain it?
    Mr. Pardue. Yes, you are on track.
    Senator Crapo. Mr. Skolasinski, in your testimony a 
question came to me along the same lines with regard to what 
was happening with the State efforts in Minnesota and in your 
industry as a result of the application of the rule, if the 
rule were to become law.
    The question is, in your opinion, do you feel that if the 
TMDL rule or program becomes law that that would impede the 
efforts to clean the waters in Minnesota?
    Mr. Skolasinski. At least from the perspective that we are 
looking at these alternative solutions, it would. One of the 
things that we are embarking on, again, is this voluntary 
mercury reduction effort.
    In this program it is opened up to anything that any entity 
can do to reduce mercury discharges or to do research to 
further the information that would lead to discharges down the 
road.
    In addition, in our local area we are currently attempting 
to develop the TMDL for the mercury situation that we have. 
However, as we envision it, we feel that we have several years 
of data collection before we can even get our arms around what 
it is we are dealing with.
    After a number of years of collecting data, then we can 
come up with a proper implementation plan. This implementation 
plan is going to have to address the air deposition aspects. I 
don't know how much the States can do to address their 
deposition because the sources of many of these things are 
outside the boundaries of the State. So until there is a 
national and even an international program, there is not a 
great deal that we can do.
    So as far as just the TMDL program in and of itself, no I 
think that will discourage a lot of us from trying to work 
together to come up with these solutions.
    Senator Crapo. I assume that everybody on the panel heard 
the testimony of the GAO in the previous panel about the lack 
of reliable data.
    Does anybody on the panel disagree with the general thrust 
of the testimony that was given that we don't have sufficient 
data to be doing reliable TMDL analysis?
    Mr. LeBlanc. I agree wholeheartedly that we are well short 
of that ability to first list the waters and then effectively 
come up with a TMDL program.
    Senator Crapo. Is everybody else in general agreement with 
that?
    Mr. LeBlanc. If I am right, too, on the mercury issue, 
there are some interesting issues from the municipal standpoint 
that we are faced with and we are frankly having a hard time 
getting people to focus on, is that you know some of the larger 
sources of mercury within the municipal waste water system are 
foodstuffs, Kool-Aid.
    FDA has an approved level of mercury in the coloring 
content of Kool-Aid of about, I think, five parts per million.
    Mountain Dew has a tremendous amount of mercury in it, 
relatively speaking, not that it would kill you or anything. 
But certainly there is a lot of Mountain Dew going into the 
waste water treatment system.
    Senator Crapo. Now we are going to have to have them come 
and testify.
    With regard to the question of the lack of reliable data, I 
am assuming that there is an awful lot more reliable data for 
point source pollution than for nonpoint sources of pollution. 
Am I correct there as well?
    Mr. Pardue. That is correct, yes.
    Ms. Bell. But some of the data that we are talking about--
we are talking about two different kinds of data. One is, what 
do we know is coming off or out of a source, and then the other 
is just what is in the water body. Those are related when you 
do a TMDL, hopefully, but they are a separate issue.
    Senator Crapo. But they are separate kinds of data. What I 
am getting at is that the real lack of data is in the area of 
the nonpoint source piece of it.
    Mr. LeBlanc. And the receiving waters themselves, also.
    Mr. Pardue. I would say there is a lack of good quality 
data just in the ambient monitoring situation in most States. 
Most States don't have the funding available to them to collect 
the vast amounts of ambient monitoring data they would need in 
order to make these listing decisions.
    As much as other people have testified to this already, it 
is an extremely important point that we cannot overlook. If you 
don't get the right data and if that data is not subject to the 
right protocols, QAQC, you are not going to get the right 
waters on the list. You are going to have State agencies 
running around with their limited resources not focused on 
truly impaired waters.
    I can't imagine that EPA would look fondly on me submitting 
compliance data that was based on evaluated data as opposed to 
something that had gone through a rigid QAQC protocol.
    We are asking that the same quality of data be collected in 
order to evaluate waters for listing.
    Senator Crapo. The point I am getting at here is that if we 
do have such a lack of data that we may end up putting streams 
of water bodies on the list, that we do not need the kind of 
attention that we will then pay to them and do not need the 
expenditure of resources that we will then expend on them, and 
we will end up, perhaps, not putting some on the list or not 
understanding how to deal with those that are on the list in a 
way that results in those that need the attention not getting 
the attention.
    Senator Crapo. Yes, go ahead.
    Ms. Bell. Because of that concern, and again, Rob Olszewski 
in the back of the room will correct me if I am wrong. He is up 
on the next panel, I think.
    But because of that concern I think all the interest groups 
except maybe the States, on the Federal Advisory Committee saw 
it as a benefit to maintain the current 2-year listing cycle 
because that allows point and nonpoint sources that are 
concerned about having their waters listed when they shouldn't 
have been to bring in data and information to demonstrate that 
the water should be delisted and that allows concerned 
citizens, other Federal and State agencies, and tribes, to 
bring in data that demonstrate listing should take place.
    I think if you have EPA's colored map of listings you can 
see that there are huge disparities between States and I think 
that does not serve anybody well. So, in order to maintain the 
flexibility that States want and to get to some consistency, 
that 2-year cycle makes a lot of sense, at least until States 
are able to get to some level that people are more or less 
comfortable with in terms of what those lists represent and 
then perhaps to go to a less frequent cycle.
    Senator Crapo. Go ahead, Mr. Skolasinski and then Mr. 
Pardue.
    Mr. Skolasinski. One of the other issues along with this is 
that currently there is not a standard protocol for determining 
if a water is impaired or not. The States do that independently 
and most of these protocols have never gone through peer review 
or formal rulemaking. That is one aspect that I think should go 
through in any revision of the TMDL regulations, is that this 
protocol should be standardized.
    To respond to an earlier question of yours, in the 
situation we have in northeastern Minnesota where the State has 
designated virtually all of the waters as impaired for mercury, 
they are measuring that against the standard of 1.3 parts per 
trillion.
    The methodology to measure to that degree was just approved 
by EPA this past year, yet almost all of the data they are 
relying on for these listings was generated several years ago.
    How close they came to following the standard procedures 
for this methodology and the clean sampling techniques is of 
great concern to us.
    What our laboratories are telling us is that at a level 
down around one part per trillion, if you have a mercury 
amalgam filling in one of your teeth and you breathe on the 
water sample, you could contaminate the water sample.
    Yet, we have no assurances that the quality control ever 
went into the collection of these samples and the analysis of 
these samples. So there indeed could be many of these waters 
that may in fact not actually be impaired.
    Senator Crapo. Mr. Pardue.
    Mr. Pardue. Just two points, if I could. One followup to 
something Mr. Skolasinski just said, in Florida we have adopted 
a statute that requires a rule to be developed on the listing 
methodology. It is an open process that involves all the 
stakeholders who are participants.
    Through that process you can hopefully come up with a 
robust methodology that will ensure that the right waters get 
listed.
    Second, I am not sure I concur to want to stay on the 2-
year listing cycle because I am not convinced that the States 
can meet that, given the gaps in the data, I would encourage us 
to continue to forge ahead and in particular look at being able 
to delist waters with an equal and equivalent amount of data 
that is collected.
    As we meet standards in new water bodies, these water 
bodies should be able to be removed from the list just as 
easily as they are put on the list.
    Mr. LeBlanc. Mr. Chairman, if I might, there is no 
requirement for minimum data sets at this point, nor is it 
being proposed. So one data point or in some cases no data 
points based strictly on observation or understanding is enough 
to list a body of water at this stage of the game.
    The program works on extreme data points. The averages and 
the general trends of the data generally are not what drives 
the decision to list or not list. It is the outlier; it is that 
one point that is way out here.
    Without adequate data sets, you always get an outlier by 
statistics. So you need an adequate data set to make sure that 
that outlier point is valid and accurate.
    Senator Crapo. It seems to me that the information we are 
getting here at the hearing today tells us that with the 
unreliability of the data we have we are embarking on a very 
expensive course that we do know is going to apply our 
resources where they need to be applied and we have a lot of 
people telling us that they are going to be diverted from 
things they are doing right now.
    I believe that is one of the big concerns that we share.
    I see you want to respond to this, Ms. Bell.
    Ms. Bell. I do.
    Senator Crapo. Go ahead. You can have the last word and 
then we will go to the next panel.
    Ms. Bell. Well, I guess I wanted to say that there is an 
impetus for people to collect data because of this listing 
process and they in fact are doing it and waters are getting 
delisted. There is no doubt about it.
    The second thing is that when TMDLs are done it behooves 
everybody involved and that often does include Federal agencies 
and other State agencies as well as regulated and nonregulated 
interests to go out and collect data and to help work with the 
State to collect the data or what have you, or to get the data 
that they already have, and there is plenty of it out there 
that is not being used, and bring it to the table.
    In that process, if it is determined that a TMDL is no 
longer NPDES needed, then one doesn't need to pursue data 
collection. But if it is, then data are usually collected in 
order to support the TMDL effort. Because it is not to 
anybody's advantage and particularly not to point source's 
advantage to prepare a TMDL without sufficient data.
    Senator Crapo. I agree. Thank you all very much. We could 
go on with this for a long time, and we probably will in one 
way or another. I appreciate your attention to the issues at 
hand and the testimony. This panel will be excused.
    We will now call up our fourth panel. Ms. Joan Cloonan, 
vice president, Environment and Regulatory Affairs at J.R. 
Simplot Company Food Group. Hi, Joan. Joan is from my home 
State and we have worked together on a lot of issues.
    Mr. Thomas N. Thomson of the Thomson Family Tree Farm of 
Orford, NH; Ms. Sharon Buccino, senior attorney at the Natural 
Resources Defense Council; Mr. Robert J. Olszewski, director of 
Environmental Affairs at The Timber Company; and Ms. Dina Moore 
of the National Cattlemen's Beef Association.
    While this panel is taking its seat, we have been joined by 
the chairman of the full committee, Senator Smith. I would be 
glad to offer you the time now to make a statement or take 
whatever time you would like, Mr. Chairman.

             OPENING STATEMENT OF HON. BOB SMITH, 
          U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

    Senator Smith of New Hampshire. Thank you very much, Mr. 
Chairman and thank you for having this hearing and thank you 
for your leadership on the issue of TMDLs.
    I would say to the panel, welcome to the city of acronyms, 
TMDLs, you name it, we have it here in Washington.
    As you know, Mr. Chairman, we are looking at at least one 
subcommittee hearing. We have talked about another one out your 
way and we are planning to have one in New Hampshire on the 6th 
of May on this issue. So we look forward to that.
    I want to say, it is a pleasure to have so many 
knowledgeable people here this morning. I am sorry I missed the 
earlier panels, and I do have to leave in a moment and I 
apologize to the witnesses for that.
    The congressional hearings, as well as conversations that I 
have had with other Senators on this issue have caused me to 
have great concern about the impacts and legal ramifications of 
this proposed rulemaking.
    As a matter of fact, Carol Browner, the EPA Administrator 
was here a week or two ago, a little longer than that, I guess, 
for an oversight hearing. We discussed this issue and I asked 
her a question about it.
    She said as far as she was concerned the States would make 
these decisions. They were not trying to secure more permitting 
or anything of the kind.
    But then when we talked with the local farmers and 
foresters in various States we hear otherwise. I think you may 
hear some of that this morning, Mr. Chairman, or you probably 
already have.
    But the proposed rule is being criticized by State 
governments, Federal agencies, industry, agriculture, 
silviculture, not to mention the grassroots contribution to the 
30,000 on EPA.
    So I would say, I have heard from landowners and business 
men and women in New Hampshire and all over the country since I 
have been the chairman of the committee about this rule. If 
they have to get new permits for their farms or logging 
operations, many will have to sell their land to developers. 
For the life of me, I cannot understand how that could be in 
the best interest of our environment.
    I also want to say, Mr. Chairman, and I want to introduce 
Mr. Thomson in just a second, but Tom Thomson who is here 
today, a tree farmer from New Hampshire, has a very interesting 
point, I am going to ask unanimous consent that this be made a 
part of the record.
    Senator Crapo. Without objection.
    Senator Smith of New Hampshire. This is a memorandum to Mr. 
Thomson, the National Tree Farm Operating Committee, from Eric 
Kingsley, the executive director. There was a meeting with EPA 
on TMDLs that took place just a day or two ago. At this 
meeting, according to this memo, Mr. Manfredonia, who was the 
EPA Region I Associate Director for Surface Water Program, and 
in that meeting, I want to quote what Mr. Manfredonia 
indicated.
    He said that silviculture and forestry operations are not, 
to the best of his knowledge and data, an issue for water 
quality in EPA Region I.
    He indicated that waste water treatment facilities combine 
sewerage overflow and urban storm water runoff were the areas 
where there was significant opportunities for improvement in 
water quality, but not this.
    The conclusion of the meeting with EPA and the State 
agencies was that there is no reason why the EPA should step in 
and regulate forestry in this region as the States and private 
sector are doing an excellent job of making certain that 
forestry operations do not harm water quality.
    Why are we looking at a proposed rule change? I think 
hopefully we will get to the bottom of this with this hearing, 
which I commend you for, and perhaps a couple of other hearings 
out in the field.
    Let me just introduce, in deference to the other witnesses, 
but Mr. Thomson here from New Hampshire, the Thomson family 
have been long-time friends of mine. Tom's father was a former 
Governor of New Hampshire. I have known the Thomson family 
since 1970, so we go back a long, long way.
    I am pleased to welcome you here today, Tom. You are a very 
well respected forester in New Hampshire and I think what we 
find with people like Tom Thomson, I would encourage those who 
have doubts about the stewardship of private owners to go out 
and take a look at Tom Thomson's farm and see how he manages 
his land.
    In fact, there was a quote by a district conservationist in 
a tribute story about Tom by the Appalachian Mountain Club and 
I can't say it any better than that. It is a quote: ``If 
everyone had Tom's stewardship ethic, there would be no 
environmental problems.'' So, I understand when you are not 
working, it is probably costing you money to be here, but thank 
you for coming and thanks to all the witnesses for being here 
this morning.
    Thank you, Mr. Chairman.
    [The referenced documents follows:]
               New Hampshire Timberland Owners Association,
                                                    March 20, 2000.

The Honorable Robert Smith, Chairman,
Environment and Public Works Committee,
U.S. Senate,
Washington, DC 20510.

Dear Chairman Smith and members of the committee: The New Hampshire 
Timberland Owners Association (NHTOA) represents over 1,500 landowners, 
loggers, foresters and wood-using industries in the State of New 
Hampshire. Our members own and responsibly manage over one million 
acres of productive forestland statewide. I am writing to convey 
NHTOA's strong objections to the Environmental Protection Agency's 
proposed rules regarding Total Maximum Daily Loads (TMDL) from forestry 
operations.
    New Hampshire is the second most forested State in the nation, with 
over 83 percent of the State forested. The vast majority of this land 
is in private hands, contributing to the economic and environmental 
quality of the State. The EPA's proposed TMDL rules threaten private 
landowner's ability to manage their forestland in a reasonable manner--
the very action that makes land ownership economically possible.
    The proposed regulations would eliminate the designation of 
forestry activities as a ``nonpoint source,'' reversing a 27-year 
determination under the Clean Water Act. The new rules change the 
definition of forest management, opening the door to NPDES permit 
requirements for private landowners. If harvesting, site preparation, 
and other forest management activities take place near certain 
waterways, then landowners could be required to obtain a Federal clean 
water permit.
    New Hampshire's forest landowners and forest industry have 
proactively addresses this issue, and there is no need for Federal 
intervention. Landowners closely follow State ``Best Management 
Practices'' (BMPs) when harvesting timber, building forest roads and 
conducting other forest management activities. Over 1,000 New Hampshire 
loggers have voluntarily participated in the acclaimed New Hampshire 
Professional Loggers Program, which focuses attention to the careful 
design and implementation of timber harvesting operations in order to 
protect water quality.
    In addition to the lengthy and costly delays and permitting 
requirements that these rules would subject landowners to, they would 
also open up landowners to citizen suits under the Clean Water Act. If 
sued, landowners would be required to defend themselves at great 
personal expense. This is simply unreasonable.
    These rules threaten the ability of landowners to responsibly 
manage their land for forestry. Forestry in New Hampshire is a business 
with very small profit margins, and these rules threaten to add cost 
and time delays to forestry activities. In the absence of the ability 
to profitably manage forestland, many landowners may choose to sell 
their land to developers. The permanent loss of this forestland poses a 
far greater--and more pressing--environmental threat to New Hampshire 
than any forestry activity ever could.
    Forest landowners need the ability to manage their lands without 
unnecessary government intervention, and have done so admirably. We 
urge the Senate Environment and Public Works Committee to require the 
Environmental Protection Agency to halt this ill conceived, and 
possibly damaging, rule.
            Sincerely,
                         Eric Kingsley, Executive Director.
                                 ______
                                 
                                               U.S. Senate,
                       Office of Hon. Judd Gregg, January 18, 2000.

The Honorable Carol M. Browner, Administrator,
Environmental Protection Agency,
Washington, DC 20460.

Dear Administrator Browner: I am writing to convey my strong objections 
to the Environmental Protection Agency's (EPA) proposed rules regarding 
Total Maximum Daily Loads (TMDL) from forestry operations that were 
published in the Federal Register on August 23, 1999. The proposed 
rules could have a significant negative impact on New Hampshire forest 
landowners and the businesses that rely upon them.
    New Hampshire is the second most forested State in the nation, with 
over 4.8 million acres of forestland. Eighty percent of this land is 
owned and managed by over 84,000 private landowners. Their ability to 
own and responsibly manage forestland is critical to the environmental 
and economic health of New Hampshire. Your agency's TMDL rules threaten 
a private landowner's ability to efficiently manage their forestland 
and, thus, threaten the forest resource that New Hampshire relies upon.
    The proposed regulations would eliminate the designation of 
forestry activities as a ``non-point source, reversing a 27-year 
determination under the Clean Water Act. The new rules change the 
definition of forest management activities so that regulation of these 
operations shift from State-level to Federal supervision, opening the 
door to EPA permit requirements for private landowners. If harvesting, 
site preparation, and other forest management activities take place 
near certain waterways, then landowners could be required to obtain a 
Federal clean water permit for each and every such project.
    New Hampshire landowners closely follow State ``Best Management 
Practices'' (BMPs) when harvesting timber and conducting other forest 
management activities. Over 1,000 New Hampshire loggers have 
participated in the voluntary New Hampshire Professional Loggers 
Program. which emphasizes, among other things, designing and conducting 
harvesting operations to protect water quality. Licensed New Hampshire 
foresters follow these BMPs as well. To require that landowners 
operating in certain watersheds go through the delay and expense of 
receiving a Federal discharge permit, given the effective State-based 
programs already in place, is unacceptable.
    The above-mentioned permit requirements for forest management 
activities could open up private landowners to more red tape and to 
citizen lawsuits under the Clean Water Act, as well aS other Federal 
laws. In fact, forest landowners could be subject to Endangered Species 
Act consultation and significant administrative delays before 
conducting practically all silivicultural activities.
    These rules threaten the ability of landowners to responsibly 
manage their land for forestry. Forestry in New Hampshire is a business 
with very small profit margins, and these rules threaten to add cost 
and time delays to forestry activities. In the absence of the ability 
to profitably manage forestland, many landowners may choose to sell 
their land to developers. The permanent loss of this forestland poses a 
far greater environmental threat to New Hampshire than any forestry 
activity ever could.
    I urge you to cease your efforts to redefine forestry, a 
traditional non-point source activity, as point source pollution. 
Forest landowners need the flexibility to manage their lands without 
undue government intervention and have done so admirably. Your proposal 
on TMDLs threaten the continued viability of forestry in New Hampshire.
    Thank you for considering these comments. Please keep me informed 
as you deal with this important issue.
            Sincerely,
                                  Judd Gregg, U.S. Senator.
                                 ______
                                 
                                             U.S. Congress,
                     Office of Hon. Charles Bass, January 20, 2000.

Ms. Carol M. Browner, Administrator,
Environmental Protection Agency,
Washington, DC 20460.

Dear Ms. Browner: I would like to express my sincere concern about the 
Environmental Protection Agency's proposal to include silviculture as a 
point source under the Clean water Act (CWA). I believe that these 
proposed regulations run contrary to the initial legislative intent of 
the original CWA.
    I am extremely concerned about the EPA's proposal to regulate all 
silviculture activities as point sources of pollution under the 
National Pollutant Discharge Elimination System. Specifically, this 
regulation would include previously exempt categories, such as nursery 
operations runoff, site preparation, reforestation activities, 
thinning, prescribed burruna' pest and fire control, harvesting 
operations, surface drainage. and road building and maintenance.
    I am concerned that removing the exemption on these activities may 
unnecessarily impose heavy-handed Federal regulation on forestry 
activities. The silviculture industry has long history of seeking 
conmon-sense solutions to achieve effective, sustainable land 
management. In 1996 EPA report to Congress, forestry activities were 
identified as the smallest source of nonpoint source pollutions 
contributing approximately 3 percent to 9 percent of nonpoint source 
pollution to our nation's waters. Due to the relatively small impact of 
this industry, I believe that landowners should be encouraged to work 
directly with States and local governments to find answers to pollution 
problems.
    Furthermore in the original rulemaking process following enactment 
of the CWA, the EPA recognized that the Congress's original intent was 
to designate forestry activities as a nonpoint source of pollution. 
Therefore, this proposed rule would represent a departure from 30 years 
of regulatory practice. Although we share the common goals of 
categorically improving the quality of our nation's streams and rivers, 
we must not impose an excessive Federal regulatory burden which could 
cripple the silviculture industry. I urge you to reconsider this 
proposed rule.
    For your reference, I have enclosed several letters that I have 
received from my constituents' including Ivfr. Ray Burton, a member of 
New Hampshire's Executive Council. As you can see, they share my 
concerns about the effects of this proposed rule.
    Again, thank you for your consideration of my views. I look forward 
to hearing from you soon about this important issue.
            Sincerely,
                       Charles F. Bass, Member of Congress.
                                 ______
                                 
State of New Hampshire Department of Resources and Economic 
                                               Development,
                   Division of Forests and Lands, January 20, 2000.

Comment Clerk for the TMDL Rule,
Water Docket (W-99-04),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir or Madam: I am writing to request a retraction of the proposed 
Revisions to the National Pollution Discharge Elimination System 
Program and Federal Antidegradation Policy in Support of Proposed 
Revisions to the Water Quality Planning and Management Regulation 
(NPDES rule).
    My agency, the Division of Forests and Lands, is the governmental 
unit in the State of New Hampshire responsible for the enforcement of 
forestry laws, including those laws protecting water quality. The law 
enforcement staff inspects logging operations in the State to ensure 
compliance with these laws.
    In addition, these forest rangers work through educational 
programs, such as those provided through certified logger programs, to 
ensure protection of water quality. We believe in voluntary and 
incentive based programs to protect the environment first.
    In discussing the proposed rules with law enforcement staff, we 
concluded that the proposed rule will do little, if anything, to 
improve water quality in the State of New Hampshire. It is a poor 
allocation of collective public and private resources to protect the 
environment. Those few individuals who have little regard for the law 
will continue to ignore any new permitting process. For the rest, a 
permitting process will divert resources away from where it does the 
most good, implementing our State'e Best Management Practices on the 
ground. We have adequate laws on the books now and do not see any 
benefit in the proposed rule.
    The proposed rule is misguided. It creates an ominous and uncertain 
Federal regulation over silviculture and forest management. It opens 
the door for abuse by those who do not support active management and 
stewardship of our natural resources. These activities, in the larger 
scale of water quality issues, have a limited negative, if not a 
positive, overall impact on the environment. The non point source 
designation for silvicultural practices should remain. The regulation 
of these activities on private lands belongs with the States, not the 
Federal Government.
    Our collective efforts on behalf of the public should focus not on 
additional permitting and a shift to Federal control, but on 
monitoring, education and when necessary, enforcement of existing laws.
    Thank you for the opportunity to comment.
            Sincerely,
                                    Philip Bryce, Director.
                                 ______
                                 
                                    State of New Hampshire,
            Department of Environmental Services, January 20, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Comment Clerk: The New Hampshire Departmenet of Environmental 
Services (NHDES) submits the following comments concerning 
Environmental Protection Agency's (EPA's) proposed revisions to the 
agency's water quality regulations, 40 CFR parts 122, 123, 124, 130, 
and 131, published in the Federal Register on August 23, 1999. Thank 
you for the opportunity to comment on this proposal.
    As a preface, NHDES appreciates the outstanding partnership and 
working relationship that we have had over the years with EPA staff, 
both in the EPA New England offices in Boston and Headquarters in 
Washington. This partnership, which encompasses all the water, waste 
and air programs, has truly resulted in significant measurable 
improvements in New Hampshire's environment and public health 
protection. These joint efforts go way beyond the funding to support 
State program implementation provided by EPA, which is critical, to 
include activities that range from joint field sampling programs to 
national policy development. For example, we have just initiated a 
joint EPA/NHDES effort to develop a TMDL for New Harnpshire's Sugar 
River. We took forward to continuing this valued partnership into the 
future.
    The systematic listing of impaired waters and the development of 
TMDLs, followed by water quality restoration, are important activities 
to ensure continuous progress toward the long-term objectives of the 
Clean Water Act, including the attainment of water quality standards 
for all of our nation's waters. NDES fully appreciates that the 
proposed rules are a significant effort by EPA to make national 
improvements toward this goal. We strongly support your efforts to 
improve water quality across the country. However, we are also 
concerned that these proposed rules may have unintended consequences 
for States like New Hampshire that have continuously moved forward to 
develop high quality TMDLs and to address our highest priority water 
quality concerns NHDES worked closely with the other member States of 
the New England Interstate Water Pollution Control Commission (NEIWPCC) 
in the development of the comments submitted by letters dated December 
9, 1999 and December 13, 1999 on the proposed rules. We also have 
participated in the development of the joint comments of the 
Association of State and Interstate Water Pollution Control 
Administrators (ASWIPCA), the Environmental Council of States (ECOS) 
and the Coastal States Organization (CSO) dated January 20, 1999. We 
generally concur with the comments provided by NEIWPCC and jointly by 
ASWIPCA, ECOS and CSO. The comments below are provided to highlight 
issues of specific concern to New Hampshire.
    1. The proposed regulations seek to authorize EPA to designate 
certain additional silviculture activities as subject to NPDES point 
source permits; specifically. activities like nursery operations, site 
preparation, harvesting operations, surface drainage, and road 
construction and maintenance. New Hampshire forestry operations are 
regulated by a partnership of NHDES and the State forestry agency, the 
Division of Forests and Lands, Department of Resources and Economic 
Development. Enforceable State water quality standards exist and are 
applied to forestry operations. In practice, our experience had been 
that water quality violations caused by forestry operations are 
virtually always short-term problems that clearly do not merit NPDES 
permitting. In New Hampshire, additional Federal regulation of these 
activities would only add an unnecessary regulatory burden to the 
forestry industry without any clear environmental benefit.
    2. The proposed rules contain expansive listing requirements that 
are likely to lead to more studies performed as an exercise to address 
a regulatory requirements caused by listing rather than to improve 
water quality. We strongly support the listing format proposed by 
NEIWPCC as a means to provide greater flexibility to the States while 
fully meeting the intent of the Clean Water Act.
    3. Based on our experience with the development of TMDLs, the costs 
to prepare TMDLs under the proposed regulations will substantially 
exceed EPA projections. Significant funding increases for the States 
will be necessary to support the expanded TMDL program, if these rules 
are promulgated.
    Thank you for the opportunity to comment on these regulations. If 
you have any questions please contact me at 603-771-3308.
            Sincerely,
                          Harry T. Stewart, P.E., Director,
                                                    Water Division.
                                 ______
                                 
                                        Thomas D. LaPointe,
                                         51 Sherwood Drive,
                              Hooksett, NH 03106, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Re: The EPA's proposed revisions to the TMDL and the NPDES permit 
programs.

    I am currently involved in managing family owned land in northern 
New Hampshire, I have my Bachelor Degree in Forestry (BSF), and am an 
active member in the Forest Industry. I have recently been informed of 
the EPA's proposed rules that will change the designation of forest 
operations from ``non-point'' to ``point'' source pollution. I strongly 
oppose that these proposed revisions be accepted.
    Through my education and experience I have learned that 
conservation through forestry is necessary in the effort to supply the 
world's demand for wood products, benefit wildlife, promote healthy 
forests, provide recreational opportunities, provide clean air and 
water, and continue to maintain a well-balanced ecosystem. By changing 
the status of forestry activities to a point source pollutant more 
pressures through permit fees, operational delays, and (undoubtedly) 
uninformed citizen lawsuits All be placed on landowners, foresters, and 
loggers. It is these unnecessary pressures that will limit their 
ability to perform environmentally beneficial silvicultural forest 
operations.
    I strongly disagree with EPA's push for regulation through Federal 
Government. Most of New Hampshire is owned by private landowners and 
the introduction of more laws and regulations w ill dissuade them from 
engaging their properties in proper stewardship programs. This is 
sending a negative message to landowners. This proposed revision would 
increase landowner costs and allow developers a competitive advantage 
in land acquisition. New Hampshire is already seeing a steady increase 
in the amount of productive timberland turned non-productive through 
developments.
    Foresters and loggers are well aware of the potential impact on the 
environment through harvesting operations. And extensive measures are 
already employed to minimize and eliminate any and all potentially 
hazardous situations. New Haunpshire already has stringent regulatory 
agencies heavily involved in monitoring the impact of forest operation 
on our environment.
    I urge you to vote against this proposed revision, for you, for me, 
and for generations to come.
            Sincerely,
                                           Thomas LaPointe.
                                 ______
                                 
                                               John O'Neil,
                                      129 Groveland Avenue,
                            Manchester, NH 03104, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

In Response to Proposed Revisions to the TMDL: I am a landowner and 
licensed forester in the State of New Hampshire. I would request that 
forestry activities remain a ``non-point source'' classification for 
regulatory purposes. Listing forestry activities as a point source 
pollutant would increase costs of owning forestland dramatically. 
Landowners would be forced to sell their timberland for short term 
goals and abandon the philosophy of land stewardship for the next 
generation. Managing forestland for timber, water resources, 
recreation, and wildlife has been the goal of many New Hampshire 
landowners for generations. This type of management has not been the 
most profitable but quite marginal at times. Please do not force 
landowners to stray from these ideals.
            Sincerely,
                                               John O'Neil.
                                 ______
                                 
                                        Nicholas C. Brunet,
                                           8 Matthew Drive,
                                Auburn, NH 03032, January 17, 2000.

Comment Clerk for TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Re: New Hampshire Forestry Rules.

    I am a non-industrial timberland owner in the States of New 
Hampshire, Maine and Connecticut (461 acres in total). My reasons for 
owning and managing the properties are not strictly financial. I am 
motivated more by a respect and love of the land than the monetary 
rewards. In fact, I can show that my land investments have not been 
competitive with standard financial instruments. Despite this I remain 
committed to good management of my property and, with luck, passing the 
lands down to my children.
    I doubt that I can express the full extent of my objection to the 
new water quality rules proposed by the EPA. This proposal exposes the 
true liberal arrogance of our Federal bureaucracy. The suggestion that 
a centralized agency will use my tax dollars to monitor and judge my 
land management practices is unbelievable.
    Our forests in New England are in the healthiest condition than at 
any time in the last 100 years. The reason for this is the predominance 
of private land ownership along with minimal government interference. I 
honestly do not see the problem that these rules are expected to 
correct, and I am out in the forest every week.
    Changing forestry operations to a ``point source'' designation will 
add unnecessary delays and financial burdens on an already marginal 
financial activity. It is more than financial, however. Adding Federal 
oversight will have an overwhelming psychological effect. It will be 
both insulting and discouraging for anybody that has put their heart 
and soul into their property. I am certain that a significant 
percentage of landowners will choose to sell rather than put up with 
the expense and red tape. I, for one, will not likely purchase any more 
land and will probably sell the small piece I own in Connecticut.
    The proposed EPA changes will result in unintended negative 
consequences. Government should encourage forest stewardship rather 
than add unnecessary costs to it I strenuously object to the proposed 
changes.
            Sincerely,
                                        Nicholas C. Brunet.
                                 ______
                                 
                                   58 Branch TnPk, Unit 52,
                                Concord NH 03301, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington DC 20460.

To whom it may concern: I am writing to comment on Proposed EPA rules 
to designate forestry as a point source for pollution. I am opposed to 
the EPA or any other Federal agency regulating private landowner rights 
to log build roads, or perform sound forestry practices on their land. 
Requiring private landowners to acquire Federal permits as well as the 
permits required by the States creates a burden that is not only costly 
but also totally unnecessary. I ask that forestry activities remain a 
``non-point source'' for regulatory purposes.
    This ruling would impact me as a private landowner by restricting 
activities on MY PROPERTY. The permit system would impede my ability to 
sell logs into the best market by reducing my ability to schedule when 
to harvest my timber.
    The Impact of the EPA's purposed New Water Regulations on the 
timber industry would be equal to or greater than the impact the 
Federal Endangered Species Act had on the Pacific Northwest. These 
regulations will eliminate jobs, shut down manufacturing facilities, 
economically cripple small towns in the Northeast as well as keeping me 
from practicing sound forestry on my land.
            Respectfully,
                                              James M. Bex.
                                 ______
                                 
                                          Michael D. Sulas,
                                              P.O. Box 293,
                               Andover, NH 03216, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir or Madam: I am writing in regard to pending EPA rules 
concerning the designation of forestry activities as a ``point source 
pollutant'' under the Clean Water Act (CWA). As a land acquisitions 
forester in the northeast for a ``'timberland company'', I feel that 
such a designation would have a devastating effect on the industry and 
our nations land base.
    Since the CWA's inception, forest activities have been considered a 
``non-point source'' of pollution, meaning that such activity 
contributed only a small part to the nation's overall water quality 
problems. By labeling forestry as a ``point source'' polluter, the EPA 
is in effect grouping forestry with polluters like sewage plants and 
factories, and their associated discharges. Such a change would have 
horrifying effects on the forest products industry and the forest land 
base.
    Under this proposed ruling landowners, both industrial and private, 
would be forced to obtain Federal permits from the EPA before any road 
building or timber harvesting could take place. Permits could take a 
year to be approved or denied. They could be subject to fines and 
suites, and could be required to stop activity and study its impact on 
endangered species. These permits, in addition to those already 
necessary to conduct forestry activities, will greatly increase the 
cost of conducting harvests and building roads; severely impacting the 
financial feasibility (often negligible in comparison with other land 
uses) of purchasing and maintaining forest land. Would be long-term 
forest land owners will be scared off, and current owners will likely 
consider less environmentally friendly alternative uses such as 
development.
    Current forest practices already take great measure to protect 
water quality: like the ``Best Management Practices'' (BMP's) set forth 
from the 1972 Federal Water Pollution Control Act and it's subsequent 
amendments. Also, most States have sufficient water quality laws, 
regulations and permits already in existence. Further regulation from a 
Federal level would prove burdensome, costly and a gross misallocation 
of taxpayer money. In the few years I have been in the industry, great 
strides in the practices we use in the field have been made. I believe 
the industry is truly conscious of its environmental impact: more so 
than any other industry. The effect of being further regulated may 
prove to be the breaking point for our industry.
    The benefits of forested land have always been clean air and water, 
diverse wildlife habitat, countless forest products, and immeasurable 
recreation opportunities. [developed land offers none of these 
benefits. Forestry activities are responsible for only a fraction of 
our nation's pollution. To designate them as a ``point source'' 
polluter would have more negative effects on the environment than 
positive. Therefore, I strongly suggest that forest activities maintain 
their ``non-point source'' status.
            Sincerely,
                                          Michael D. Sulas.
                                 ______
                                 
                                           Rodman R. Black,
                                             134 Hurd Road,
                                                  Newport NH 03773.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Sir: For many years my wife and I have been certified Tree Farmers and 
as such have done our best to practice responsible forestry practices 
on our forest acreage.
    We understand the EPA is currently endeavoring to gain Federal 
regulation of forestry activities by changing the present ``non-point 
source'' status, under the Clean Water Act, to ``point source'' which 
would designate forestry operations to the same status as a factory or 
sewage treatment facility.
    Like other Tree Farmers we are proud of our stewardship of our 
forest land. There appears to be no significant pollution of rivers and 
streams as a result of forestry activities. So why should the EPA 
expand its jurisdiction and impose a myriad of red tape rules on us tax 
payers. Where is the supporting evidence?
    Who knows what the EPA will define as forest land having potential 
impact on water quality standards. Such Federal regulations would 
probably put an end to the Tree Farm system and what kind of 
organization would Cone forward to fill the void. Certainly the EPA 
would not fill the bill.
    Most Tree Farmers, like us, are ``Mom and Pop'' operations. We 
don't hire workers to help us perform TSI (Timber Stand Improvement) we 
could not afford the expense so we do the work. Federal regs would 
prohibit us, as a practical matter, from fulfilling our Tree Farm 
tasks. And the question of our actions being monitored for their impact 
on endangered species is beyond understanding.
    Because there is no reasonable evidence to support the ``point 
source'' change we strongly oppose the proposed rule as being 
counterproductive.
            Sincerely,
                                           Rodman R. Black.
                                            Nancy H. Black.
                                 ______
                                 
                                        Hunters Hill Trust,
                                           99 State Street,
                      Saratoga Springs, NY 12866, January 14, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

To whom it may concern: I write as Trustee of Hunters Hill Trust, owner 
of 120 acres in Elkins, New Hampshire. The trust's property has been 
operated by us as a tree farm and seasonal residence for more than 40 
years. We are a Certified Tree Farm and member of the New Hampshire 
Timberland Owners Association.
    Over the years, we have periodically harvested a variety of trees, 
including white pine, hemlock, spruce, birch and others. Our management 
of the renewable timber resources has provided us with very modest 
cash-flow about every 10 or 15 years, about enough to pay a year or two 
of property taxes. In addition, our harvesting has enhanced wildlife 
habitat significantly, which has contributed to our enjoyment of the 
property, and to the health of the local ecosystem.
    Our concern with the proposed rule is that it would materially harm 
both the economic basis of our property, and unnecessarily and 
detrimentally alter the health and viability of wildlife habitat. It 
seems incongruous that EPA would consider a rule that would be so 
damaging to a viable economic activity that enhances the environment.
    The proposed rule requires landowners engaged in forest management 
activity to obtain a Federal permit, and subjects them to citizen suits 
for permitted activities, possible fines and other penalties. If this 
rule is adopted, we will no longer engage in forest management on our 
property, because the cost of obtaining a permit will be more than the 
profits from future harvesting, and the potential of lawsuits would be 
an unacceptable risk to the trust. Although a cessation of tree farming 
would be deeply disappointing to us, as we have enjoyed it for years, 
the costs and risks of doing so under the proposed rule are simply too 
great to bear.
    We know what happens when tree harvesting (even once every decade) 
is curtailed for extended periods of time. When we first acquired the 
property in the mid 1950's, it had never been harvested, and there was 
a period of more than 15 years between two subsequent harvests. At the 
end of those periods, the forest canopy was high, and very little 
vegetation grew below because of the lack of sunlight penetration. 
Wildlife, including game birds, deer and others, was deprived of cover 
and was not in evidence.
    After our periodic harvests open up small cleared areas for natural 
regeneration, evidence is abundant of all kinds of wildlife, including 
moose (Alces aloes), deer, black bear, fishers (Martes pennanti), many 
birds, including turkey (Meleagris gallopavo), hawk, vulture, wild cat 
and others too numerous to mention, all of which have been personally 
observed by members of my family, and documented in our Forest 
Management Plan which was professionally prepared and is on file with 
the Town of New London.
    The proposed rule would cause the habitat of these species to be 
eliminated from our property, which is located near other managed 
woodlands in a significant watershed at the headwaters of the 
Blackwater River.
    Although the economic benefits of woodland management are 
relatively modest far the trust, if they were eliminated altogether 
(which would be the result if the proposed rule is adopted), the trust 
would be forced to consider other uses for the land. New London is 
under tremendous pressure for development, and it is likely that the 
only alternative use for the property, once tree farming is eliminated, 
would be to sell to a developer. There are a number of potential home 
sites on the property, which has a commanding view of Pleasant Lake.
    As active Tree Farmers, we can say that a significant amount of 
time and money is put at risk when a harvest is undertaken, with no 
certainty of the return. Requiring a Federal permit for such 
environmentally benign activity is onerous and will cause us to stop 
harvesting. The potential of ``citizen suits'' exposes the trust to 
legal action from parties other than those who may be directly affected 
by our actions. Such a risk is completely unacceptable. In addition, by 
curtailing tree farming because of the EPA rule, our tree farm 
certification would be put at risk, which could cause our local 
property taxes to rise, as we presently enjoy a low assessment due to 
certification.
    Forestry activities should remain a non-point source under the 
agency's rules. None of the activities we engage in impact any waterway 
or watershed, other than beneficially by increasing forest cover and 
reducing erosion.
    Please acknowledge receipt of these comments.
            Respectfully submitted,
                                   Gordon M. Boyd, Trustee.
                                 ______
                                 
                                       Charles W. Thompson,
                                    233 Brickett Hill Road,
                              Pembroke, NH 03275, January 28, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

To Whom it May Concern: I am writing in response to a recent notice 
which I received regarding a proposal by the Environmental Protection 
Agency (EPA) whereby forestry operations would be designated as a point 
source for pollution. As a tree farmer under the American Tree Farm 
system I was quite surprised that forestry management activities would 
be considered as a point source for pollution similar to that which 
might be experienced from a chemical plant, sewerage treatment plant, 
factory, or the like.
    As background, I currently manage a 200-acre tree farm which has 
been in our family since 1800. Over the years my ancestors, and now I, 
have managed this 200-acre tree farm as a working forest much the same 
as a person would manage a home vegetable garden. There is a time for 
seeding, a time for management, a time for harvesting, and a time to 
prepare for succeeding generations. In actuality the impact upon the 
land through normal tree farm management activities is less significant 
than those activities undertaken in managing a vegetable garden.
    As a working forest, there are activities which are continually 
being undertaken. First, selective harvests are planned and carried out 
every 8 years to 12 years. This time period is expressed in a range 
since I try to plan these harvesting operations in conjunction with a 
white pine seed year. The normal disturbance of the soil prepares an 
excellent seed bed in which the white pine seeds can germinate. There 
are times when it is unknown precisely when the best seed year will 
occur and oftentimes these selective harvests are planned with little 
long range planning.
    A second activity which occurs is the periodic salvaging of timber 
which has been lost due to winter blow downs, insect damage, or other 
natural occurrences such as the ice storm which had a devastating 
effect on a portion of our tree farm 2 years ago. These harvesting 
operations also occur without a great opportunity for long range 
planning.
    Ongoing maintenance to include erosion control, narrowing of 
logging and access road, drainage control, preparation and management 
of wildlife feeding areas, etc. are ongoing activities. Again, this 
entire process is not unlike the management of an agricultural crop.
    As a tree farmer, like most tree farmers, I am constantly concerned 
with the health of my forest. I would be greatly disturbed if any 
pollution of any of any sort occurred on our land or polluted any of 
the waters on our land. I am very diligent in monitoring all activity 
that is carried out on our tree farm to insure that no contamination of 
any type occurs. I can speak with confidence that all of the tree 
farmers whom I know feel the same way.
    In summary, the proposal to designate foresty operations as a point 
source for pollution would if an excessive burden on the ability to 
manage these tree farms as we have in the past. The prospect of having 
to go through a permitting process, hearings, potential appeals, etc. 
prior to conducting any of the stewardship activities outlined above, 
would significantly diminish the effectiveness and efficiency of these 
ongoing activities and in many cases would discourage a tree farmer 
from performing these stewardship activities and thereby diminishing 
the productivity of these lands. Further, tree farmers might consider 
posting land making it off limits to the general public for fear of 
adverse consequences which might result from public use of these tree 
farms. Accordingly, please consider tree farms as positive influences 
upon the environment rather than point sources for pollution.
            Very truly yours,
                                       Charles W. Thompson.
                                 ______
                                 
                                         Hoag Island Trust,
                                         98 High Rock Lane,
                               Westwood MA 02090, January 20, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington DC 20460.

Dear Sir or Madam: I appreciate the opportunity to comment on the new 
rules prepared by EPA. As I understand it these proposals would 
designate forestry operations as a ``point source'' for pollution, 
require a Federal permitting process, and remove the responsibility for 
monitoring from State and local to Federal agencies.
    While I would welcome the Federal Government setting high standards 
for environmental protection under the CWA, I believe first, that it 
should target the large commercial logging operations on publicly owned 
lands, and second, that forestry practices by private landowners should 
be exempted from the ``point source'' designation provided they qualify 
under a Tree Farm or similar program, and that they should continue to 
be monitored by State and local authorities.
    Federal Agencies have for centuries allowed the timber industry to 
get away with murder on our National Parks and other public lands. To 
subject private owners to any further regulation before that issue is 
faced and resolved would be a monstrous miscarriage of justice!
    The Trust that I represent is located in New Hampshire and is a 
family owned affair. It's limited forestry operations have been carried 
out in accord with a long term management plan carefully worked out 50 
years ago by professional foresters, (New England Forestry Foundation). 
It has qualified for Tree Farm status for over 20 years. Permitting and 
monitoring by local and State authorities has been protective of 
erosion, water quality and other environmental concerns as they should 
have been. Because of our property's location we are particularly 
sensitive to any regulation that would prolong or delay our operations 
or would add to the already high costs associated with difficult 
access. I find it hard to believe that adding Federal supervision would 
result in increased protection of the environment and it would surely 
add to delays and higher costs.
    My impression is that forestry operations on private property is a 
negligible contributor to pollution of our watersheds and that the 
situation has been improving in recent years. I am told that EPA's 
studies substantiate this.
    I strongly believe that the proposed regulations will be counter 
productive in that they will add to the burdens of private ownership of 
forest lands forcing more owners to sell out to developers which is not 
in the best interests of NH, or the country as a hole. I hope you 
committee will carefully consider the suggestions I have outlined.
            Sincerely,
                                Hamilton Coolidge, Trustee.
                                 ______
                                 
       Society for the Protection of New Hampshire Forests,
                                     Concord, NH, January 19, 2000.

Comment Clerk,
Water Docket (W-99-04),
Environmental Protection Agency,
Washington, DC 20460.

Re: Comments from the Society for the Protection of New Hampshire 
Forests on the EPA's Total Maximum Daily Load Program Proposed Rule.

Dear Comment Clerk: Since its founding in 1901, the Society for the 
Protection of New Hampshire Forests has advocated for good forestry 
practices and the protection of water resources, including the 
reduction of non-point source pollution. However, the Society is 
opposed to the TMDL rule changes as proposed by the Environmental 
Protection Agency.
    Specifically, the Society opposes the reclassification of forestry 
operations under the Clean Water Act from the non-point source category 
to the point source category. The legislative history of the Clean 
Water Act makes clear Congress's intent that forest management 
practices were to be regulated under the non-point source program. We 
believe that forestry contributes a negligible fraction of pollution to 
streams and rivers and that forestry operations are, in fact, a non-
point source of pollution, as negligible as they are. Reclassification 
as a point source is unwarranted.
    Further, best management practices have been developed in most 
States to control these non-point sources. New Hampshire woodlot owners 
and foresters have a heritage of responsible stewardship and commitment 
to following best forestry practices. The Society believes that 
continued education about and monitoring of these practices is the best 
way to control and reduce non-point source pollution resulting from 
forest management operations. The proposed TMDL rule changes would 
undermine the continuing efforts made in this area.
    The Society also believes that the proposed rules, which will move 
the responsibility for monitoring TMDLs from the States to the Federal 
Government, will impact forestry operations in a way that is exactly 
opposite of the intended effect of the proposed rules. A Federal 
permitting process for forestry operations would impose a heavy burden 
on New Hampshire landowners in increased cost and bureaucratic delay. 
We believe that the proposed rule changes are onerous in scope and 
could force land out of productive forestry and into development. 
Forcing landowners to choose between healthy forests and selling for 
development is not good for New Hampshire's environment, or for the 
nation's.
    We believe that the removal of the point source exemption for 
forestry operations fails to recognize the beneficial contributions to 
water quality provided by the presence of forestlands and their 
appropriate management. Healthy streams, lakes and watersheds are 
clearly linked to the presence of forests. Forests provide other public 
benefits as well, such as clean air, good wildlife habitat and public 
recreation. The best way to continue these benefits is to provide 
incentives to landowners to maintain healthy forests. The Society 
believes that these proposed rule changes will remove current 
incentives by increasing regulatory and financial burdens on 
landowners. For these reasons, the Society opposes the proposed rule 
changes.
            Sincerely,
                            Susan Slack, Policy Specialist,
               Society for the Protection of New Hampshire Forests.
                                 ______
                                 
From: Paul A. Doscher.
To: [email protected]
Cc: Carl DeLoi 
Date: Thursday, January 20, 2000 4:47 PM.
Subject: Comments on Water Docket (w-98-31)
To: Comment Clerk USEPA 401 M. Street, SW Washington, DC 20460
Re: TMDL Program Rule, Water Docket (W-98-31)

As a forest land owner, environmental scientist, former professor of 
environmental science and professional in the land conservation field, 
I am writing to object to the potential designation of forestry as a 
``point source'' of pollution for regulatory purposes.
    I have been involved in environmental protection in New Hampshire 
for more than 25 years, own a small Tree Farm and have supervised 
forest management on many thousands of acres. I have high standards for 
forestry on my land, and can state with absolute certainty that no 
forestry practiced on my land has ever produced any water quality 
problems on my land or in the stream which dissects it. In fact, if New 
Hampshire forest and wetland laws in place today are enforced 
correctly, this should be the case for any forest operation in the 
State.
    Further, in this era when the employment of Best Management 
Practices (to control soil erosion) and Recommended Voluntary Forest 
Management Practices are becoming common practice, water pollution due 
to forestry activities has declined dramatically in New Hampshire. 
Placing a new layer of Federal regulation on forestry, with seemingly 
negligible actual environmental benefit would be a serious error.
    Why?
    Because this new requirement will increase the cost of forestry to 
many landowners for whom good forestry is already a marginally economic 
activity.
    Because it will cause significant delays in harvesting and may 
prevent operation on dry and frozen ground conditions unless landowners 
anticipate permit delays well in advance.
    Because it will create a significant ``backlash'' by conservation 
minded landowners against environmental regulation they perceive to be 
of inconsequential benefit to water quality.
    Because there are many more important water quality problems to 
deal with in our State and region and injecting Federal regulation into 
forestry activities cannot help but dilute the Federal resources 
available to address more important problems.
    Forestry should remain a ``non-point'' source for regulatory 
purposes. EPA should instead continue to support the promotion of 
education on Recommended Voluntary Forest Management Practices, and 
training of land managers, owners and loggers on BMPs. These have 
proven successful, and EPA funding has helped them to succeed. Please 
do not undermine the good work that has been achieved through past EPA 
collaboration with the forestry community.
            Sincerely,
                                           Paul A. Doscher.
                                 274 Poor Farm Road Weare, NH 03281
                                 ______
                                 
                                            Pine Knob Farm,
                                             RR 1, Box 614,
                 Whitefield, New Hampshire 03598, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

To Whom It May Concern: Do not designate forestry operations as a point 
source for pollution. As Tree Farmers and as stewards of the land we 
have tried our best to maintain or improve water quality, wildlife and 
plant habitats as well as the quality of timber for eventual harvest by 
our grandchildren.
    Most of our more than 800 acres of forest grows on hydric soils. We 
have limited timber harvests to frozen ground, but on occasion there is 
a thaw during the operation which may cause some temporary run off. 
Seldom has this affected any area beyond the immediate operation. Most 
people would never see a problem, but we have shut down logging 
operations until freezing temperatures return. We take other measures 
as well to protect water quality during and after logging operations. 
Most landowners and loggers, whether or not they are Tree Farmers, 
follow the same procedures. As landowners we must live with the results 
of what we do. We do not need more permits, analysis, fees or ``outside 
experts'' telling us how to manage our land.
    We have, for many years, encouraged school groups, various 
organizations and individuals to visit our Tree Farm to see the way we 
manage the land, to hunt, to hike or to cross country ski. We have 
invited people to see logging operations in progress. No one has ever 
questioned our care of the land, but two hikers did question the 
cutting of ``all those beautiful trees''.
    Regrettably we have a few people in our town and surrounding 
communities who do not believe a tree should ever be cut whether in our 
nearby White Mountain National Forest or on private land. These 
individuals will welcome your proposed rules, especially the 
opportunity to bring legal action against landowners for perceived 
violations. It would only take a couple of well publicized cases not 
only to curtail logging on private lands, but also to end good and 
active stewardship on such lands. More private land now open to the 
public will likely be posted against trespassing.
    Encourage and assist private landowners to be good stewards of the 
land. Do not promulgate new regulations which will in the long term 
defeat what we all want to achieve--retention of open space, clean 
water, clean air, a habitat that will sustain diverse wildlife and 
plants alike and a place for people to enjoy. We are enclosing a copy 
of the information sheet we give visitors to our Tree Farm. We would 
welcome the opportunity to have one or more EPA folks visit and see for 
themselves some of what we have done.
            Sincerely,
        David W. Tellman, New Hampshire Tree Farm No. 2112.
                                          Tanya S. Tellman.
                                 ______
                                 
                                             Judith E. Fry,
                                             RFD No. 1 Box,
                              73 Alton, NH 03809, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Attention Comment Clerk: It was recently brought to my attention that 
the EPA is proposing new Clean Water Act regulations that will 
seriously impact Tree Farm owners. I understand the proposed EPA 
regulations would designate forestry operations as a ``point source'' 
for pollution-the same status given to a factory or sewage treatment 
plant.
    Secondly, I understand that these new regulations being proposed 
will remove a State's authority to monitor TMDL'S, total maximum daily 
load, and place this responsibility in the hands of the Federal 
Government.
    I do not believe that Tree Farmers should be considered in the same 
category as a factory or sewage treatment plant. Also, I do not believe 
that Tree Farmers should be considered mayor water polluters of our 
rivers and streams. Even your agency's studies indicate forestry 
practices contribute only a very small percentage of pollution to our 
rivers and streams.
    Currently I am the caretaker/owner of a small Tree Farm, 300 acres, 
in the Lakes Region of NH. There are a series of steps required of an 
owner who is planning a logging program or other practices that require 
permits,etc. Here in our town, the Town Forester oversees each forest 
cutting, there are numerous town and State permits required and 
regulations in place to be followed before a logging Job may begin.
    Ultimately the responsibility for careful responsible and informed 
forestry practices lies with the landowners), guided by the expertise 
of a town, county or professional forester and responsible logger. Who 
better to oversee Tree Farm operations, when needed, than our own New 
Hampshire State Agency, Environmental Services Dept. and not a Federal 
agency.
    idur proposed rule will mean more red tape, more delays, more 
permits, more analyzing, not to mention more expense to a Tree Farmer 
like myself. I do not support the EPA'S proposed changes.
            Respectfully,
                                             Judith E. Fry.
                                 ______
                                 
                                Brookdale Fruit Farm, Inc.,
                                 38 Broad St. P.O. Box 389,
                           Hollis, New Hampshire, January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Comment Clerk--EPA: We are small tree farmers in New Hampshire, and 
part of our property borders a major river.
    The proposed national rules under the Clean Water Act will replace 
State control of TMDL. With Federal monitoring and responsibility, it 
will also replace the ``non-source'' point designation with ``point 
source'' for pollution regulation. This classification is totally 
wrong--another example of the government acquiring property rights 
through agency regulation.
    Tree farmers are good citizens and help provide the public with 
clean air, water, habitat for wildlife, recreation, and healthy forests 
for the future. Please don't make us land developers.
            Sincerely,
                               Frank Whittemore, Treasurer,
                                         Brookdale Fruit Farm, Inc.
                                 ______
                                 
                              Frederick and Virginia Hatch,
                                             27 Pease Road,
                               Meredith NH 03253, January 18, 2000.

Re: EPA TMDL Program Rule Comments.

    We are Tree Farmers (Nos. 1641 in Meredith NH and 2464 in Sandwich 
NH) whose management of our woodlands will be adversely affected by the 
proposed rules for transferring control and permitting to a Federal 
agency. Our 72 acres in Meredith has recently been placed under a 
perpetual conservation easement with the New England Forestry 
Foundation (NEFF) to include tree farming, wildlife habitat 
enhancement, and public recreation. Both tree farms have management 
plans created and implemented by NEFF licensed foresters. There are 
already many regulations and ``best management practices'' concerning 
timber management operations, which are adhered to by our forester and 
the selected loggers. Most of these concern protection of water 
quality. Note also that in this part of New England most harvests are 
carried out in venter on frozen ground and water.
    The Meredith tree farm contains one small permanent and several 
seasonal streams. The drainage passes through a prime wetland, a larger 
brook and river, and several intervening lakes before ultimately 
becoming part of the Merrimack River. The 34 acre Sandwich tree farm 
contains no significant watercourses and little or no drainage ever 
leaves the property. An exception is frontage on a beaver pond at the 
rear which has a major brook outlet. However, because of the scenic and 
wilderness value of the pond, any timber operation will leave a large 
uninvolved buffer around the pond.
    Major management operations are carried out on these tree farms 
only every 10-15 years. Given the descriptions above, it is 
inconceivable that these activities could contribute more than a de 
minimis point source of pollution. Adding a layer of Federal control on 
top of established and proven local regulations and professional 
practices would create a great inconvenience for our care of this 
property. Our NEFF foresters are already so busy that gaining their 
services requires lengthy advance planning. Adding another layer of 
bureaucracy to this process violates all common sense for operations of 
our magnitude. We will admit that operations on tracts ten or 20 times 
our size, or closer to major water bodies of concern may justify more 
stringent control. An important negative consequence of applying the 
proposed program to small tracts is that landowners who do or might 
practice good forestry will reject the regulation overlay and its costs 
and sell their land for development, with far greater degradation of 
the New Hampshire environment than will occur with the present level of 
stewardship of our natural resources.
    Thank you for your consideration of these comments.
            Sincerely yours,
                       New Hampshire Timberland Owners Association.

                   Society for Protection of New Hampshire Forests.
                                 ______
                                 
                                       Bruce M. Schwaegler,
                              P.O. Box A, Indian Pond Road,
                                  Orford, NH 03777, March 20, 2000.

Thomas Thomson,
Bridge Street,
Orford, NH 03777.

Dear Tom: It is my understanding that you will be testifying soon 
regarding the TMDL Program Rule. I believe strongly that forestry 
activities should remain a ``non-point source'' for regulatory purposes 
and that monitoring of TMDLs should remain with State agencies.
    Attached is a copy of the letter that I provided to the Comment 
Clerk for the TMDL Program Rule during January, 2000. I hope you will 
represent my point of view during your testimony.
    Best regards.
            Sincerely,
                                                     Bruce.
                                 ______
                                 
                               Schwaegler Family Tree Farm,
                                                  January 17, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Environmental Protection Agency: I am asking that forestry 
activities remain a ``non-point source'' for regulatory purposes. 
Furthermore, I am asking that monitoring of TMDLs remain with State 
agencies rather than moving that responsibility to the Federal 
Government.
    My certified Tree Farm is in the Connecticut River valley. Its 2800 
acres includes 95 percent of the watershed of a 150-acre lake and its 
major outflow wetlands. I am proud that my stewardship ethic is that of 
taking great care of this natural resource. I invest extra financially 
to assure that my standards are high. I go out of my way to encourage 
other non-industrial forestland owners to adopt a similar high-level 
stewardship ethic.
    I am very concerned that the proposed rule may have severe negative 
implications. To the extent that the additional regulatory review 
results in additional costs--for instance time delays and professional 
fees--my finite resources will be siphoned into those activities and 
away from my ability to meet my own high standards on a voluntary 
basis. I am also concerned that the proposed rule may open me to legal 
challenges even though I am practicing sound, sustainable forestry.
    From a public policy point of view, I feel that any additional 
Federal resources should go toward the ongoing job of educating non-
industrial private forestland owners about proper standards of forest 
management. This group, who collectively own nearly 59 percent of our 
nation's 490 million acres of timberland, are well intended and share 
the goal of high water quality standards. Many are new to forest 
management and, therefore, education is important.
            Sincerely,
                                          Bruce Schwaegler.
                                 ______
                                 
                                              W.M. Dannehy,
                                            6 Maple Street,
                              Woodsville, NH 03785, March 10, 2000.

Thomas Thomson,
RR1, Box 9,
Orford, NH 03777.

Thanks for requesting the use of my letter of 1/18/2000 to the 
Environmental Protection Agency regarding the proposed rule changes for 
W-98-31.
    You are more than welcome to utilize this letter at the upcoming 
Senate hearing. Specifically, your local knowledge and testimony will 
give the beltway people a true picture of field and forest conditions.
    Best of luck with your efforts.
                                 ______
                                 
                                              W.M. Dannehy,
                                            6 Maple Street,
                            Woodsville, NH 03785, January 18, 2000.

Comment Clerk for the TMDL Program Rule
Water Docket W-98-31
Environmental Protection Agency,
Washington DC. 20460

:Proposed revisions to the Water Quality Planning & Management 
Regulation W-98-31.

    For the past 35 years I have been involved with nonpoint 
agricultural and silvicultural water quality efforts as both a 
professional Federal soil conservationist (30 years) and for the past 5 
years as a consultant. I have also been a timberland owner and tree 
farmer for over 30 years. My activities have generally been focused in 
northern NH, VT, NY and ME.
    Over the past 35 years, I have witnessed and been involved with 
various efforts on the local and State which have made tremendous 
progress in developing and implementing aggressive and effective non-
point programs. This has been a cooperative effort utilizing State 
agencies, University systems, local professionals and a variety of 
Conservation organizations. Despite the success of the local and State 
effort, we now are told that EPA is proposing a Federal regulatory 
program aimed at non-point sources of pollution.
    Admittedly, there are demonstrated non-point problem areas which 
may not be successfully addressed on a voluntary basis. I would suggest 
that everyone would be better served if State and local organizations 
be funded with Federal dollars and utilize Federal technical guidelines 
to address problems rather than tarring the matter over to another 
Federal agency.
    As proposed, I feel these rules changes will destroy the sense of 
trust, stewardship and partnership which many people have worked for 
many years to establish between landowners and State and local 
technical agencies. By bringing in an outside Federal enforcement 
agency/local attitudes and feelings will revert back to what they were 
over 30 years ago.
                                 ______
                                 
                                      High Ridge Tree Farm,
               1999 New Hampshire Outstanding Tree Farmers.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear EPA: My wife, Ginny, and I are tree farmers in New Hampshire and 
have recently become aware that your agency is proposing new Clean 
Water Act rules for forestry that could adversely affect our tree 
farming activities on our property in NH.
    As I understand the proposal, your agency feels that Forestry needs 
more Federal control over our tree farming activities in NH. I would 
disagree with this assessment for several reasons:
    1. Forestry results in the lowest source of sediment of all land 
uses. The cropping factor used in the universal soil loss equation is 
the lowest for forestry. Regular farming activities have much higher 
soil loss than forest activities primarily because the rotation for 
forest activities is so long compared to other land uses.
    2. Forest landowners are the best protection for water quality in 
the nation. If we are forced to undergo additional and unnecessary 
Federal regulation in the name of water quality, the result could very 
well be counter productive because of the forced sale of forest land to 
other land uses which are not as beneficial to water quality.
    3. Forest activities are currently regulated by the State of New 
Hampshire by the required implementation of BEST MANAGEMENT PRACTICES 
on harvest operations. These rules as I understand them have been 
reviewed by your agency and have been affectively implemented for many 
years with the result that forestry has the least impact to water 
quality of all land uses in NH. If it ain't broke don't fix it. If a 
forest activity is in violation of the law regarding water quality, 
than current law should be enforced on the violator instead of putting 
an additional burden on forest landowners who are currently protecting 
water quality better than any other land use category.
    4. I have not seen any specific information or data to support 
EPA's proposal that additional regulation is required in New Hampshire 
to regulate forest landowners through a Federal permitting process. 
Lacking this information there is no logical reason to put this costly 
regulatory burden on landowners.
    Please consider our concerns and seriously consider the withdrawal 
of your proposal because it is not needed for forestry in NH. Because 
your proposal has such a large potential financial impact on forest 
land owners in New Hampshire I would request that you hold public 
hearings in New Hampshire before taking any final action on this 
proposal so that all points of view can accurately be expressed in 
public and the merits of the proposal can be closely examined by the 
public in a public forum.
    Please forward to us specific material that you have to Justify 
your proposal that would affect forest landowners in NH. Also notify us 
of any hearings or other notices on this matter that your agency may 
undertake.
    Thank you for year consideration.
                                      Thomas G. Chrisenton.
                                    Virginal L. Chrisenton.
                                 ______
                                 
                               Schwaegler Family Tree Farm,
                              P.O. Box A, Indian Pond Road,
                                Orford, NH 03777, January 17, 2000.

Comment Clerk for the TMDL Program Rule Water,
Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Environmental Protection Agency: I am asking that forestry 
activities remain a ``non-point source'' for regulatory purposes. 
Furthermore, I am asking that monitoring of TMDLs remain with State 
agencies rather than moving that responsibility to the Federal 
Government.
    My certified Tree Farm is in the Connecticut River valley. Its 
2,800 acres includes 95 percent of the watershed of a 150-acre lake and 
its major outflow wetlands. I am proud that my stewardship ethic is 
that of taking great care of this natural resource. I invest extra 
financially to assure that my standards are high. I go out of my way to 
encourage other non-industrial forestland owners to adopt a similar 
high-level stewardship ethic.
    I am very concerned that the proposed rule may have severe negative 
implications. To the extent that the additional regulatory review 
results in additional costs--for instance time delays and professional 
fees--my finite resources will be siphoned into those activities and 
away from my ability to meet my own high standards on a voluntary 
basis. I am also concerned that the proposed rule may open me to legal 
challenges even though I am practicing sound, sustainable forestry.
    From a public policy point of view, I feel that any additional 
Federal resources should go toward the ongoing job of educating non-
industrial private forestland owners about proper standards of forest 
management. This group, who collectively own nearly 59 percent of our 
nation's 490 million acres of timberland, are well intended and share 
the goal of high water quality standards. Many are new to forest 
management and, therefore, education is important.
            Sincerely,
                                          Bruce Schwaegler.
                                 ______
                                 
                                   Phillips Exeter Academy,
                                            20 Main Street,
                                Exeter, NH 03833, January 14, 2000,

TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Clerk: The Phillips Exeter Academy owns approximately 700 acres 
and is a registered tree farm.
    In the past, we have been involved in various forestry practices 
including timber harvest, pruning, fire access road construction. In 
recent years we have become committed to increased forest management, 
wildlife habitat improvement, grassland management, recreation trail 
construction and maintenance, and land protection. We enlist the 
knowledge and experience of the county the extension service, USDA 
Natural Resources Conservation Service, private consulting foresters, 
and professional contractors. Fortunately we have not been unduly 
delayed by lengthy process and restrictions. Increased regulation, 
inspection, permits, etc. will only serve to retard our good progress.
    The Academy puts a high priority on the management and protection 
of its land and we consider ourselves responsible stewards. We would 
ask that forestry activities remain a ``non-point source'' for 
regulatory purposes. Thank you for the opportunity to express our 
opinion.
            Sincerely,
                       Dennis Huber, Supervisor of Grounds,
                                           Phillips Exeter Academy.
                                 ______
                                 
                                               Tomapo Farm,
                                         Bruce C. Townsend,
                                    11110 Storrs Hill Road,
                          Lebanon, NH 03766-2312, January 15, 2000.

Comment Clerk for the TMDL Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

    I would like to respond to the proposal to include forestry 
operations as a ``point source'' classification.
    I live on and operate a family farm which was settled by my four 
greats grandfather in 1769. I am the seventh generation to live here. 
The farm consists of 400 acres of which 60 acres are tillage and the 
remainder is forest of mixed hardwoods with a fair amount of Eastern 
White Pine and a lesser amount of Eastern Hemlock. Probably seventy-
five percent hardwood. We also have a 1500 tap maple sugar operation 
and are members of the American Tree Farm System.
    For two hundred plus years we have practiced good forest 
stewardship, and at no time have had a problem with ``point source'' or 
``non-point source'' pollution. We have always practiced good soil 
conservation on our land as well.
    As a small business (under $100,000 per year) the additional 
regulations and red tape they create would only add to our costs and 
make it that much more difficult to stay here. In fact I think it 
highly likely that if I found myself facing the additional red tape, 
citizen suit liability, and even the possibility of having my business 
``held up'' while someone checked to be sure there are no endangered 
species here, I'd call it quits.
    I feel like the only endangered species here are the landowners, 
farmers and foresters. Does anyone care about this human race?
    Please, don't put Forestry Operations in the ``point source'' 
classification. I believe it will have a very negative effect on small 
landowners and Tree Farms.
    Finally, It seems to me that the State of New Hampshire has been 
doing a very good job of handling water pollution control.
            Sincerely,
                                         Bruce C. Townsend.
                                 ______
                                 
                               Mr. & Mrs. Leslie C. Briggs,
                                            157 South Road,
                        Kensington NH 03833-5807, January 10, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir or Madam: This is being written in response to your proposal 
for new Nationwide rules and regulations that will impact our ability 
to practice responsible forestry. No new rules regarding how we manage 
our woodlands are necessary since we have been exhibiting responsible 
stewardship over a good many years.
    My wife and myself are the proud owners of a 177 acre Tree Farm 
known as the Pine Tree Trust which has been in my wife's family for six 
generations. We have been the custodians of this property since 1978 
when my wife inherited the property from her father.
    Since acquiring ownership, forest related work has been in 
continuous practices A 25 year Forest Management Plan was prepared by a 
certified consulting forester, Charles Moreno and silverculture 
practices have been carried out ever since.
    Mr Moreno incidently is also a Tree Farm Inspector. He has been 
selected as the New Hampshire Tree Farm Inspector of the Year six 
times--and the Northeast Region winner twice. Last November he was 
named the 1999 Westley R. Meier Outstanding Inspector of the Year by 
the American Tree Farm System. He has served as a Tree Farm Inspector 
for 18 years and has-earned the American Tree Farm System's Gold Hard 
Hat award for certifying more than 100 Tree Farms in his career.
    Our property which spans two Towns here in the Southern most part 
of Rockingham County which happens to be the fastest growing part of 
the State and New Hampshire also happens to be the fastest growing part 
of New England.
    My wife and myself have been working for almost a year to obtain a 
Conservation Easement on this woodland. The easement has been drawn up 
and with a little fine tuning will be in place later this month.
    Tree Farmers as well as other Woodland Owners in this State have 
been responsible stewards of their woodland property and any additional 
Government rules and regulations are not needed.
    We do not want more red tape, more expenses and more administrative 
delays. Back off and let us continue to handle our woodlands in a 
responsible manner.
            Sincerely yours,
                                          Leslie C. Briggs.
                                 ______
                                 
                                        Bill & Nancy Yates,
                              RR2 392A1 Chestnut Hill Road,
                            Farmington, NH 03835, January 11, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-9-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir or Madam: I would like to make a comment about being a tree 
farmer. I have 150 Acres of land under the stewardship program. I would 
request that forestry activity remain a ``non-point-source'' for 
regulatory purposes. I have been able to be a tree farmer and follow 
all good conservation practices because of the financial assistance I 
have received, as well as the help in obtaining permits.
    We do not need more regulatory action that could seriously damage 
the heritage of responsible stewardship that New Hampshire tree farmers 
have built up over the last 50 years.
    I would appreciate my comments be considered before any regulatory 
action is taken.
    Thank you,
                                          William A. Yates.
                                 ______
                                 
                                  Kathryn Donovan Kachavos,
                                              New Boston, NH 03070.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir: I am writing to you regarding the proposed rules because of 
my concern that the implementation of such regulation may have a 
serious adverse effect on the stewardship of New Hampshire forest 
lands. The land that I own is an undivided parcel of 50 acres that has 
been cared for by only four families since it was settled in the 
1760's. Most of the acreage is second growth forest, primarily white 
pine. Forest management began in the 1960's under the previous owner to 
maximize sustainable yields.
    The land has been a certified Tree Farm since 1986. A stewardship 
plan was developed in 1996 to guide continuing management. Besides the 
forest, the land has water courses and two ponds which are in the 
watershed of the Piscataquog River. The forest supports a rich and 
varied wildlife, including deer, black bear, coyote, fox, weasel, 
snowshoe hare, mink, fisher cat, porcupine and raccoon. Herons and 
hawks nest as well as numerous smaller birds. Moles, mice and voles are 
well-represented. Because of forest diversity, ample resources are 
available to the entire food chain.
    This result has been achieved through the guidance and support of 
several groups and individuals. However, it would not have been 
possible to accomplish this without these resources being accessible 
and easily utilized by the small landowner. Most of the timber in New 
Hampshire is owned and managed by small landowners like myself. Current 
programs have made it convenient for us to develop sound forestry 
practices and management skills.
    While I appreciate the goal of clean water and protecting the 
watershed, I would note that sound forestry practices already add a 
great deal to any watershed, by acting as active filters and drawing 
pollutants out of the air and soil. Increasing regulation is likely to 
drive the small landowner out of sound management because of the burden 
of forms and bureaucracy. I would also note that the time consumed by 
regulatory procedures may prevent the owner from selling at prime 
market price. As small landowners, most of us harvest only 
sporadically, and missing the market may cause real hardship.
    Finally, I would observe that Tree Farmers are already interested 
in, and active in protecting watershed quality. The conservation 
easement on my land is held, not by the Forest Society but by the local 
watershed association (Piscataqoug Watershed Association). I currently 
allow access to my land for hiking, fishing and hunting, but I am 
concerned that under the proposed regulations, liability issues would 
force me to reconsider the question of access.
    In conclusion, let me share with you what I consider a far more 
serious threat to watersheds than forestry activities. As a very young 
child, I listened to my grandfather berate the paving of a road near 
his truck farm. ``In a hundred years, you will not be able to grow corn 
on this black top,'' he said. But then he turned to me and explained 
that the real damage was that the paving prevented the rain from 
soaking into the ground and replenishing the springs and wells and that 
most of it would end up wasted, returning to the ocean unused. The 
amount of land sacrificed to road paving within watersheds constitutes 
much more of a problem for water quality than forestry activities.
    Please let forestry activities remain a ``non-point source'' for 
regulatory purposes.
            Sincerely,
                                  Kathryn Donovan Kachavos.
                                 ______
                                 
                                          Peter C. Rhoades,
                    New Hampshire Licensed Forester No. 69,
                   South Acworth, NH 037607-7703, January 11, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

    This letter is a comment on the proposed new rules to designate 
forestry operations as a ``point source'' for pollution. I consider 
myself a dedicated conservationist and in general support most efforts 
to improve the quality of our nation's air and water. However, I am 
strongly opposed to the proposal to designate forestry operations as 
point source for pollution, for the following reasons. My knowledge is 
limited primarily to New Hampshire(NH) and surrounding New England 
States, and my comments are most specific to this region. However, as I 
feel that these proposed rules are counterproductive to good forest 
management and environmental quality in general for this region, I feel 
that a different approach is needed to address this problem if indeed 
it exists in other regions of the country.
    1) This designation is not needed. Forestry operations contribute a 
tiny portion of the pollution to New Hampshire waters. Existing 
regulations under the jurisdiction of the New Hampshire Dept. of 
Environmental Services are quite inclusive and provide a framework 
within which forestry operations can be monitored and controlled. Other 
agencies such as the New Hampshire Division of Forests and Lands, 
Cooperative Extension, NRCS, Regional Planning Agencies, Local 
Conservation Commissions, etc., are available to provide technical 
assistance, education, and monitoring to help continue to improve the 
quality of logging operations and the quality of our waters. The New 
Hampshire logger certification program is one example of the efforts to 
continually improve the quality of logging.
    2) Because forest management activities are such a negligible 
source of pollution, forest landowners can have virtually no impact on 
upgrading the quality of an impaired watershed. If other sources of 
pollution, such as mentioned below, and such sources of silt as natural 
landslides along waterways, which are a major source of silt in this 
area, are not dealt with, the forest landowners will be burdened with 
these onerous rules indefinitely.
    3) The EPA is not the right agency to be involved with the 
regulation of logging operations on private lands. It is impossible to 
believe that the EPA has the resources or the knowledge of local 
conditions to be able to administer these rules in an efficient manner, 
without causing undue burden on landowners.
    4) The rules could be counterproductive to the goal of improving 
the quality of our environment. Tree Farming is a marginal occupation 
financially. While many forest landowners own and manage forest land 
primarily for the pleasure it brings them, most need to be able to 
generate enough income from the forest to be able to continue cover the 
costs of ownership. As I understand the proposed rules, the added costs 
and delays in conducting forest management activities, and the 
subjection of landowners to citizen suits for permitted activities, 
will almost certainly cause some if not many landowners to sell their 
woodlands for house lots, industrial sites, or other development 
purposes. These developed uses will contribute much, much more 
pollution and environmental degradation than the forest management 
activities which they replace. For example, the largely unregulated use 
of fertilizers, pesticides, and herbicides used by homeowners and on 
commercial grounds Is a major potential source of water pollution. In 
addition, for every acre of forest land that is lost to productive use 
in New England, where soils are resilient and forests easily 
regenerate, a comparable amount of fragile rain forest may harvested, 
or marginal land be put into monoculture plantations, to replace the 
volume of wood that could have been produced in NE. I consider the 
impact that this shift in wood production has on the loss of species, 
global warming, and environmental degradation in other areas of the 
globe to be much more serious than the negligible pollution caused by 
logging in NE.
    I believe that the EPA can use its resources much more effectively 
than to adopt and try to administer these proposed rules. I also 
believe that the adoption of such intrusive and unwarranted rules such 
as those proposed will have the effect of fuming many supporters of 
sound environmental legislation, which I believe most New Hampshire 
landowners are, toward an anti-regulatory attitude, and have a negative 
long-term impact.
    The background from which I form the above opinions includes 25 
years experience as a consulting forester, managing many thousand acres 
of forest land; owning and managing 215 acres of my own woodland, part 
of which has been in the family for 100 years; working as a Town 
Forester for 5 New Hampshire towns, and observing many of the timber 
harvest operations that take place in those towns; serving as Chairman 
of a local planning board for many years, during which time a Water 
Resource Protection Plan was developed and adopted; and serving as the 
elected representative from this area on the Farm Service Agency County 
Committee, working with programs to direct Federal money under programs 
such as EQUIP toward funding voluntary landowner projects to improve 
water quality. Thank you for your attention to these concerns.
            Respectfully,
                                          Peter C. Rhoades.
                                 ______
                                 
                                 Jackson, Jackson & Wagner,
                                                  January 10, 2000.

    I strongly protest, Mr. Comment Clerk. . . . the proposal under 
Water Docket (W-98-31) that Forestry should become a point source for 
pollution and therefore be included in TMDL of impaired water.
    I am a small landowner and tree owner in Rockingham County, New 
Hampshire. This is one of the fastest growing counties in the northeast 
and any landowner is under continuous lucrative enticement to sell land 
for development.
    As a certified Tree Farmer with a stewardship program based on SFI, 
my long-range plan is based on soil conservation, quality timber for 
selective harvesting recreation, wild life conservation (the land is 
not posted) and preservation of clean water resources. Because of the 
terrain of the land, my best hope is that well managed forestry will 
provide break-even financial returns for the investment required for 
roads, culverts, updated management plans and harvesting with minimum 
impact.
    My opposition to the proposed TMDL rule is based on three concerns:
    1. I am past president of Rockingham County Woodland Owners and the 
New Hampshire Timberland owners. In my experience the State of New 
Hampshire has a good record in both passing forestry legislation that 
protects the environment and in enforcing water quality regulations in 
forestry operations.
    Recommendation: If the EPA has money in its budget for this 
proposed rule, use these funds constructively. On a grant basis make 
them available to States and non-profit organizations such as the NHTOA 
to provide expanded water quality education to landowners and 
industrial forestry.
    Remember the Yankee saying ``If it ain't broke don't fix it''.
    2. For small landowners like myself the reality of dealing with the 
uncertainty and intricacy of TOOL regulations would add so much to the 
time and expense of managing my land that the rule will be 
counterintuitive. The regulations will encourage me to let my 
forestland become once again unproductive.
    A conservation organization such as the SPNHF designed to promote 
good forestry would have little interest in accepting an easement on 
land that is potentially subject to the expensive capriciousness of 
Federal permitting. On my death the acreage would go on the market for 
development.
    Recommendation: Since forestry contributes so little to water 
pollution, EPA spends our tax money on dealing with major sources 
including acid rain. More generous grants to small communities would 
help clear up sewage pollution; greater cooperation between the EPA and 
the Department of Agriculture would help deal with the TMDL caused by 
soil erosion, fertilizers and pesticides.
    3. The Declaration of Independence specifically condemns harassing 
lawsuits. This rule gives those groups committed to the wilderness 
philosophy an open door to halt by threat of an injunction, fines and 
interminable appeals any forestry project that does not fit with their 
views This truly is outdoor relief for environmental lawyers and their 
supporting organizations.
    Recommendation: The EPA accepts training from the leaders of New 
Hampshire conservation organizations who have the experience to set up 
productive partnerships--not litigation--between private and industrial 
landowners, conservation organizations and State agencies to improve 
water quality.
    Most vigorously,
            Isobel Parke, APR, Fellow PRSA, Senior Counsel.
                                 ______
                                 
                                            Milton L. Page,
                                              P.O. Box 171,
                         Melvin Village NH 03850, January 12, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Comment Clerk: This letter refers to TOOL Water Docket (W-98-31). 
The director of the New Hampshire Timber Owners Association, Eric 
Kingsley, and the President-Forester, Jane Difly of the Society for the 
Protection of New Hampshire Forests requested my comment.
    As the outstanding Tree Farmer of Carroll County for 1983, I 
personally know that the landowner usually does not operate the logging 
on his land. Therefore, I think permits should be required of the 
person doing the work.
    Decentralized control at the local level and permits issued to 
forest operators, not landowners, I feel is the way to go. The Clean 
Water Act took the landowner's rights away in 1964 anyway.
            Sincerely,
                                            Milton L. Page.
                                 ______
                                 
                                    Greenleaf Products Inc.
                                        Post Office Box 228
                          West Ossipee, NH 03890, January 10, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31)
Environmental Protection Agency,
Washington, DC 20460.

Dear Sirs: This letter is in reference to the proposed changes of the 
Clean Water Act.
    As a landowner and forester I am requesting that forestry 
activities remain a non-point source for regulatory purposes.
    Ownership of forest land is at best a marginal enterprise. One more 
layer of regulation will only hasten the liquidation of these assets 
into the hands of intense commercialization. There are already enough 
regulations in place to maintain the environmental quality if enforced.
    At the present we make every effort to achieve sustained yields (or 
our own lands and the lands we manage.
    Timing is very important when managing natural resources, 
harvesting of trees must be coordinated with seed sources, wildlife 
populations and seasonal vanations only to mention the most obvious. 
Any more tinkering with already effective regulations will only create 
more obstacles and delays at the source of production.
    In addition any more obstacles wit) ultimately affect our toad and 
fiber supply for our urban population at the end of the supply chain.
    Your consideration of these comments will be appreciated.
            Sincerely,
                                     Harold Cook, Forester.
                                 ______
                                 
To: Comment Clerk for the TMDL Program Rule,
From: George W. Chase (497 Putney Hill Road, Hopkinton, NH 03229)

    I wish to comment on the proposed new nationwide rules of the 
Environmental Protection Agency.
    While I am normally in favor of any strengthening of EPA standards 
and even more supportive of efforts made by EPA to actually pursue and 
prosecute those found to be violating EPA guidelines already in place, 
I am not convinced that the redesignation of forestry operations as 
``point source'' operations is in the best interests of the country. 
Furthermore, I have greater doubt that the Federal oversight of 
forestry is likely to be more effective than local and State oversight. 
This is especially true when the Tree Farm Program is involved.
    I am a Tree Farmer and have been for 20 years. I am on the boards 
of conservation organizations, and I am a State representative. I have 
witnessed both good and bad forestry operations. One of the poor ones 
took place on land abutting mine and caused unnecessary erosion. Such 
things do indeed happen but as a group forest land owners are probably 
about as fine a group when it comes to conservation as you will find. I 
cannot say the same for the transportation industry, the construction 
industry, many corporations, and even some in the agricultural sector 
who have not made every effort to minimize the amount of fertilizer and 
pesticides used by employing environmentally friendly alternative 
methods (albeit initially more expensive but in the long run less 
expensive). To impose regulations on a group that already is well aware 
of long-range planning and is willing to wait for 5, 10, 15 or more 
years between cuttings may well drive some of the group into the hands 
of developers. EPA will then be faced with the unenviable job of taking 
on business and industry whereas EPA is now considered to be an ally of 
most forest owners.
    Working cooperatively and supportively with New Hampshire Tree 
Farmers will, I firmly beileve, prove to be a better course of action 
than to aggravate an important group of landowners who have proven that 
they wish to be responsible stewards of a large amount of acreage. In 
fact they are quite willing to encourage millions of others to enjoy 
those acres in a variety of recreational pursuits.
    Thank you for considering this response to your plans.
                                           George W. Chase.
                                 ______
                                 
                                    Roger S. Leighton, Sr.,
                             Stratford, NH 03884, January 10, 2000.

Comment Clerk, TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Reference: Clean Water Act (CWA) ``Forestry and the Non-Point Source of 
Pollution''

Dear EPA Personnel: I am the owner of the 500-acre Leighton Tree Farm 
in the towns of Barrington, NH and Strafford, NH.
    It has been brought to my attention that the EPA, under the CWA, is 
planning to reclassify forestry operations as a point source for 
pollution, rather than a nonpoint source of pollution, and a Tree 
Farmer, such as myself, would have to obtain Federal permits when 
carrying out forestay operations that might have the potential for 
causing point pollution. These permits would be in addition to the 
present permits required by the N.H. Dept. of Environmental Services.
    It would appear to me that Federal permits would be a duplication 
of the present permits, infield supervision, and enforcement now in 
place in the State of New Hampshire Tree Farmers, Loggers, and 
Foresters have over the years adapted their field operations to include 
the New Hampshire permit system. Through our continuing education 
programs for licensed foresters and loggers we are kept up-to-date on 
correct field operations to stop possible erosion from forestry 
operations. The Tree Farmer, or, his consulting forester supervise all 
forestry operations on his tree farm. Most, if not all, Tree Farmers 
require the services of a licensed (certified) logger.
    I should like to go on record as opposing the changing of the 
category of forest operation as a ``non-point source of pollution'' 
under the CWA to a point source of pollution, and the requiring of 
Federal permits for forestry operations.
            Sincerely,
                          Roger S. Leighton, Sr., Forester.
                                      New Hampshire Lic. No. HC-74.
                                 ______
                                 
                                          David D Skidmore,
                                           Emery Holt Road,
                                              P.O. Box 127,
                           Lyndeborough, NH 03082, January 9, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Sir: I was recently advised that the Environmental Protection 
Agency (EPA) is proposing new nationwide rules related to forestry, and 
that these rules would affect private lands. As a New Hampshire Tree 
Farmer, I wish to express my concern for the proposed rules, as I 
understand there, as they will adversely affect my ability to manage my 
land and tree farm.
    New Hampshire is one of, if not the most progressive State with 
respect to protecting its forests and wild life habitat environments. I 
have an eighty-acre tree farm with a wide variety of hard and soft wood 
trees, and wildlife. My management plan provides for continual 
improvement of that forest and its products, as well as caring for and 
ensuring a sound habitat for the wildlife that reside and pass through 
the area on natural game trails. In addition, we provide controlled 
recreational access to hikers, wildlife enthusiasts, cross country 
skiers and snow mobile's on designated trails, while restricting access 
to certain wildlife habitats.
    It is responsible forest management by responsible landowners 
working in conjunction with the New Hampshire Timberland Owners 
Associations and Society for the Protection of New Hampshire Forests 
that protect our forest environments and wildlife habitats. It is not 
big government, Federal Agencies that have little or no local knowledge 
or understanding of the region. I believe forestry activities should 
remain a ``non-point source'' for regulatory purposes. While your 
agency does a wonderful job on the whole, X does not need be over 
zealous and get involved in New Hampshire's forest activities pre-
empting the State's Department of Environmental Services. I do not need 
an absentee agency to impede my efforts and add a cost burden to meet 
my responsibilities as a tree farmer.
    ``If it ain't broke, don't fix it.''
            Sincerely,
                                         David D. Skidmore.
                                 ______
                                 
                                      John C. Calhoun, Jr.,
                            Gilsum, NH 03448-0008, January 8, 2000.

Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
    Envtronmental Protection Agency,
Washington DC 20460.

Dear Rule Makers: I write to you as a landowner, a tree farmer, a 
former chairman and honorary director of the Connecticut River 
Watershed Council, and a founding member of the Board of the Ashuelot 
River Manaagement Protection Program. I am a believer in clean water.
    But I write to you also as a career forest manager who provided 
management guidance and services to the private land owners in the New 
England area and beyond for the past 46 years.
    It is agreed that forests are the single most effective protection 
for watersheds and for the rivers that drain them. Only 25 percent of 
the forests in the Northeast are owned by the public as national and 
State forests. The rest are all private forests, owned mostly in 
relatively small--under 200 acres--by the few remaining farmers, their 
successors, the weekenders and some retirees, and a representative 
cross-section of citizens, some wealthy, but many of average means.
    A significant, but decreasing number of large acreage holding are 
owned by the forest products industry.
    The forest industry in the New England States has been alert to the 
problems of water quality, and already have in place very tough laws 
with respect to maintaining water quality on stream crossings and 
erosion during the process of logging.
    These are already in place and have proved to be effective in 
curbing the few offenders that failed to follow those rather simple and 
sensible rules that are in place in Vermont, New Hampshire, 
Massachusetts, and Maine, with which I am familiar.
    The ethic for protection of the soil and the quality of water in 
our streams is at ready in place, in my opinion. The means of dealing 
with the few who through ignorance or indifference ignore the rules, 
are also in place and are proven to be effective.
    The imposition of a new, Federal permit layer will be completely 
redundant for the New England area! In addition it will add a layer of 
complexity and delay and vulnerablity to the forest management process 
that will greatly add to the disincentives for owning and managing 
woodland for the long range. There are already a number of permits and 
hurdles to secure and clear prior to a harvest of timber. There are 
also a number of taxes on the owning and harvesting of forest products. 
As these pile up every owner will be asking how much more can they try 
to control and regulate what i do to make money on the renewable 
products that I grow on my land?
    And there is the larger question to be asked: Compared to all the 
other forces at work to impair the surface and subsurface water of this 
country how much actual damage is being caused by logging and other 
activities on my property, to the waters draining that property? Or is 
the result of my maintaining a valuable and perpetual forest/tree farm 
is there a very positive benefit to all the New England water ways?
    In a time of surpluses and plenty we dismiss the importance for the 
region or the country of one dairy or crop farm and one tree farm. But 
that is how they are lost--one ownership at a time. Over 20,000 acres a 
year are gone in New Hampshire, to be succeeded by development, 
pavement, drains roads, run-off, sewerage, you know the rest.
    The concern of the EPA and all the branches of government including 
the Congress, should be: How can we encourage and sustain the 
productive farm and forest land of this country to bolster the life-
support system of our mostly urban and totally dependent citizens, who 
presently care little as to where their food, shelter, paper products, 
fuel, chemicals come from. But God help us when the time of shortage 
comes, as it did during the oil embargo, and fuel is scarce, or when 
due to drought or crop disease, food is scarce and has to be rationed!
    The forest industry has over the years demonstrated a 
responsibility and a stewardship of its forest lands. It has an ethic 
that has been aided by a resilient forest environment, that has 
demonstrated that resilience from past overcutting of the past, and 
from wildfires. We know what we have to do and we are doing it. But the 
process is fragile and threatened. Please EPA, do not add to the 
problems!
    This EPA proposal, which I judge you feel is a major step to save 
the rivers and waters, will not be aided in any way by including 
forestry activities as a point source of pollution. Nor will it result 
in any cleaner water from our presently forested hillsides.
    Most sincerely,
                                       John C. Calhoun, Jr.
                                 ______
                                 
                                  Thomson Family Tree Farm,
                                 Orford, NH 03777 January 12, 2000.

Ms. Carol Browner,
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.

Dear Ms. Browner: I am wearing two hats as I write this letter in 
opposition to EPA's rule change (TMDL) in regard to changing forestry 
from non-point source to a point source.
    First I represent myself as a private non-industrial woodland owner 
and certified tree farmer and second as the Vice Chair of the National 
Tree Farm Operating Committee representing nearly 70,000 members across 
the United States who are managing 85 million acres in a sustainable 
manner.
    We are opposed to this rule change and strongly urge you to leave 
forestry as is: a non-point source. Enclosed is a recent article that 
outlines our concerns.
    This rule change will only encourage and in some cases force 
landowners to sell and convert their woodlands to development. I ask 
you, which is more environmentally beneficial to society, the forest as 
we know it today or housing developments, shopping malls and pavement? 
I think we would both agree on the forest. Please use common sense on 
this important issue and leave forestry as a non-point source.
    I would invite you to tour a healthy forest (tree farm) and see for 
yourself the many benefits we provide to society which include timber 
for our nation, enhance wildlife habitat, create recreational 
opportunities and provide clean air and clean water.
            Sincerely yours,
    Thomas N. Thomson, Tree Farmer.
                                 ______
                                 
Statement of Thomas Thomson New Hampshire Tree Farmer and Chair of the 
           Policy Committee for the National Tree Farm System
    Mr. Chairman and members of the committee: Thank you for allowing 
me the opportunity to discuss the concerns that non-industrial 
landowners from across the country have about the Environmental 
Protection Agency's (EPA) proposed water quality protection rule change 
that will impact forestry.
    First, I represent the Thomson Family Tree Farm as a private non-
industrial woodland owner from New Hampshire. This Tree Farm is owned 
and managed by my family, including my wife Sheila, and our 22 year old 
son Stacey. We manage 2,600 acres as a working, sustainable forest.
    Second, I represent the National Tree Farm System as Chairman of 
the Policy Committee. The National Tree Farm System is made up of 
certified Tree Farmers from across this great country numbering 66,000 
members who are responsibly managing nearly 25 million acres of forest. 
This organization began in 1941 in the State of Washington and today 
has certified tree farms in nearly every State.
    To be a Tree Farmer one must actively manage their woodland and 
must meet the high standards set out by our national office. There are 
four basic elements to a certified tree farm; Wood, Wildlife, 
Recreation and Water. We plant, weed and thin our forest to grow 
quality timber for our nation while at the same time we enhance the 
wildlife habitat, create recreational opportunities for our neighbors 
and protect water quality.
    In the United States there are 9.9 million private non-industrial 
landowners that own over 60 per cent of this nations forest and produce 
over 65 per cent of the raw materials for the U.S. Forest Industry. Our 
forest is this nations most valuable, renewable, natural resource that 
we have.
Opposed to EPA rule change
    We are opposed to EPA's rule change that would change forestry from 
a non-point source (reversing a 27 year determination under the Clean 
Water Act) to a point source.
    EPA is proposing private landowners would need to secure a Federal 
permit before a timber harvest, site preparation, planting, control 
burns and other forest management practice in areas where water ways 
are classified as having impaired water quality. A Federal permit would 
take over a year to obtain and any citizen could challenge such a 
permit. Permitting may require landowners to consult with the U.S. Fish 
and Wildlife Service concerning Endangered Species, and under the 
proposed regulations a landowner found in violation could be subjected 
to fines of up to $27,500 per day. I believe in the old adage that ``if 
it ain't broke, don't fix it''.
    For many years tree farmers have been working with our individual 
States in a voluntary effort practicing State approved Best Management 
Practices (BMP). Some examples would be pole crossings, water bars, 
stream culverts and final stabilization, which adds to the overall 
expense to protect water quality, but we believe it's the right thing 
to do. A total of 47 States have adopted BMP's for forest practices and 
on average individual compliance is nearly 90 percent. Even EPA 
recognizes the good job we are doing; so we believe it is important to 
continue to maintain control with our States where they know and work 
best with their people.
    You may recall 2 years ago on January 8th, the devastating Ice 
Storm which struck four northeast States and caused hundreds of 
millions of dollars worth of damage to our forest. Two months before 
the storm hit, our 1,060 acre tree farm was recognized as the Northeast 
Outstanding Tree Farm. In less than 3 days 900 acres was devastated. 
This was to be our legacy to our son, Stacey. Today, we are working 
tirelessly to restore and regenerate this forest which will take 
another generation before it is productive. The point I want to make is 
many tree farmers across this nation face similar challenges with their 
forest such as fire, drought and disease, but we are willing to make 
the best of it and go forward.
    However, I am convinced that under EPA's proposed rule change this 
could be the straw that breaks the camels back. Many will throw up 
their hands and give in to the constant calls from land developers.
    I ask you which is more environmentally damaging to our society, 
our tree farm that is managed as a working sustainable forest, 
protecting water quality, or this forest replaced by housing 
developments, shopping malls and asphalt pavement which we know today 
as urban sprawl. I don't believe anyone can disagree with me that the 
forest is by far safer and healthier to our society.
    As our nation's tree farmers prepare for their 60th Anniversary and 
reflect on the accomplishments we have provided to this nation that 
includes clean water we would hope that EPA will join us to celebrate, 
not regulate.
    This concludes my remarks Mr. Chairman and I will do my best to 
answer any questions you have. Thank you.

    Senator Crapo. Thank you very much, Senator Smith.
    Senator Smith of New Hampshire. I do apologize for leaving. 
I have another commitment.
    Senator Crapo. We appreciate your attendance and we will 
proceed to try to find solutions to this problem.
    I first want to say to this panel that I want to thank you 
for your patience in waiting so long to get up here, but as is 
true with all the other witnesses, your testimony is going to 
be very thoroughly reviewed and we appreciate the time and 
attention that you bring to this issue.
    I also remind you to try to watch those lights. Let's start 
out in the order that we announced. First, Joan Cloonan from 
Idaho. That is my home State. I have known you, Joan, for a 
long time and I have worked with you on many issues and I am 
glad to see you here.

  STATEMENT OF JOAN CLOONAN, VICE PRESIDENT, ENVIRONMENT AND 
 REGULATORY AFFAIRS, J.R. SIMPLOT COMPANY FOOD GROUP, BOISE, ID

    Ms. Cloonan. Thank you, Mr. Chairman, I am glad to be here. 
First, I will mention that the J.R. Simplot Company is a 
privately held agribusiness corporation based in Boise, ID, but 
I am speaking today on behalf of the Northwest Food Processors 
Association as well, a regional trade association representing 
the fruit, vegetable, and specialty processing food industry in 
Idaho, Washington, and Oregon.
    I submitted with my testimony copies of the comments on the 
TMDL rule submitted by Northwest Food Processors as well as 
those submitted by the food industry and environmental council.
    They address some of the details of EPA's proposal and I 
would like to be a little more general here with some of my 
comments.
    The food processors fully support the goals of the Clean 
Water Act to restore and maintain the quality of the quality of 
the Nation's waters. We are supportive of the general concepts 
that we believe motivated the proposed regulation, a consistent 
national approach is desirable and there does exist a water 
quality problem that in some areas cannot be solved by solely 
controlling point sources.
    It appears, however, that EPA has taken a straight-forward 
program originally directed at point sources and broadened it 
to a wide-ranging plan encompassing point and nonpoint sources 
and they are very different regulatory and technical issues.
    In the Pacific Northwest States have assumed a strong 
leadership role in establishing and funding programs to meet 
Clean Water Act requirements, including preparation and 
implementation of TMDL programs. All three States are committed 
to preparing TMDLs for all State water bodies listed as water 
quality impaired within timeframes dictated by litigated 
agreement.
    It is important to recognize, however, that although some 
Federal funding has been provided to the States for these 
programs, the current programs are primarily funded by State 
moneys. In the State of Idaho, the stakeholder groups work with 
out Division of Environmental Quality to help them develop 
TMDLs.
    The stakeholder group is charged with the development of 
the implementation plan within 18 months of EPA approval of the 
TMDL. The implementation plan is not now subject to EPA 
approval.
    In Idaho it also involves a number of different State 
agencies, not solely our DEQ. The proposed system would include 
the implementation plan as part of the TMDL and add 
significantly to time for development with an unclear effect on 
the court-ordered schedules for further development.
    I think we had something like 900 segments listed, a more 
than 8-year schedule. There was a lot of uncertainty there.
    In addition, EPA can refuse to approve an implementation 
plan until it is satisfied that the State is a sufficiently 
strong authority to achieve water quality standards.
    Under this proposal, EPA expands its authorized authority 
over nonpoint sources by its ability to withhold TMDL approval, 
holding the State and point sources hostage to the process and 
threatening with the issuance of nonpoint source NPDES permits.
    Under the proposed offset provision, listed water bodies 
cannot accept new or significantly increased discharges of the 
water quality limited constituent unless mandatory effluent 
trading of offsets occur.
    Mandatory effluent trading may place potentially a 
disproportionate burden on point sources inconsistent with the 
equity considerations of this process.
    We believe voluntary effluent trading is far more effective 
than a cleanup program and mandates or coerces private parties 
into effluent trading.
    The State of Idaho is in the forefront working with EPA on 
the development of a voluntary effluent trading program. The 
process has proved to be complicated but this voluntary program 
could provide a model for the rest of the country. The first 
model trades will involve a point source and a nonpoint source 
with key concepts being local control, market-based pricing and 
appropriate ratios.
    This process will encourage and finance nonpoint source 
projects such as constructed wetlands which otherwise might 
never happen. Trading ratios are not arbitrarily set by 
regulations. Quantification can be broad based on the type of 
project with a conservative reduction credit or monitored with 
liberal reduction credit.
    The trade ratios will be dependent upon the relative 
location of the trading partners. We believe this will provide 
a flexible and economic mechanism to meet environmental 
responsibilities without the need for additional regulation.
    We urge that EPA reconsider its attempt to expand its 
authority into traditional State regulatory areas. It is 
important to look at the entire Clean Water Act with its 
balance of State and Federal authorities for achieving clean 
water goals rather than to force the TMDL program to achieve 
all of these goals on its own in a complex and prescriptive 
program.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Ms. Cloonan.
    Mr. Thomson.

   STATEMENT OF THOMAS N. THOMSON, THOMSON FAMILY TREE FARM, 
                           ORFORD, NH

    Mr. Thomson. Thank you, Mr. Chairman.
    First I would like to say a special thank you to my 
Senator, Senator Smith, for that introduction.
    I would also like to introduce some tree farmers who have 
joined me today that also have the same concern as I. Anitra 
Webster from Virginia, Bill Lawhon from Ohio, Wilson Rivers of 
Florida, and Greg Daley of New Jersey, along with George Ice, a 
forest hydrologist for the Society of American Foresters.
    The following is a summary of my testimony. First, I 
represent the Thomson Family Tree Farm as a private, non-
industrial woodland owner from New Hampshire. This tree farm is 
owned and managed by my family, including my wife, Sheila, and 
our 22-year old son, Stacey. We manage 2,600 acres as a 
working, sustainable forest.
    Second, I represent the National Tree Farm System as 
Chairman of the Policy Committee. The National Tree Farm System 
is made up of certified tree farmers from across this great 
country, numbering 66,000 members who are responsibly managing 
nearly 25 million acres of forests.
    This organization began in 1941 in the State of Washington 
and today has certified tree farms in nearly every State. To be 
a tree farmer, one must actively manage their woodland and must 
meet the high standards set out by our national office.
    There are four basic elements to a certified tree farm--
wood, wildlife, recreation and water. We plant, weed, and thin 
our forests to grow quality timber for our Nation, while at the 
same time enhance the wildlife habitat, create recreational 
opportunities for our neighbors and protect water quality.
    In the United States there are 9.9 million private non-
industrial landowners that own over 60 percent of this Nation's 
forests and produce over 65 percent of the raw materials for 
the U.S. forest industry. Our forest is this Nation's most 
valuable, renewable natural resource that we have. We are 
opposed to the EPA's rule change that would change forestry 
from a nonpoint source reversing a 27-year determination under 
the Clean Water Act to a point source.
    EPA is proposing private landowners would need to secure a 
Federal permit before a timber harvest, site preparation, 
planting, control burns and other forest management practices 
in areas where waterways are classified as having impaired 
water quality.
    A Federal permit would take over a year to obtain. Any 
citizen could challenge such a permit. Permitting may require 
landowners to consult with the Fish and Wildlife Service 
concerning endangered species and under this proposed 
regulation a landowner found in violation could be subjected to 
fines of up to $27,500 per day. I believe in the old adage that 
``if it ain't broke, don't fix it.'' For many years tree 
farmers have been working with our individual States in a 
voluntary effort practicing State-approved Best Management 
Practices--(BMPs). Some examples would be pole crossings, water 
bars, stream culverts and final stabilization which adds to the 
overall expense of protecting water quality, but we believe it 
is the right thing to do.
    A total of 47 States have adopted BMPs for forest practices 
and on average individual compliance is nearly 90 percent. Even 
EPA recognizes the good job that we are doing. So we believe 
that it is important to continue to maintain control with our 
States where they know and work best with their people.
    You may recall 2 years ago on January 8, the devastating 
ice storm which struck four northeast States and caused 
hundreds of millions of dollars worth of damage to our forests.
    Two months before this storm hit, our 1,060 acre tree farm 
was recognized as the Northeast's Outstanding Tree Farm. In 
less than 3 days, 900 acres was devastated. This was to be our 
legacy to our son, Stacey.
    Today, we are working tirelessly to restore and regenerate 
this forest which will take another generation before it is 
productive.
    The point I want to make is that many tree farmers across 
this Nation face similar challenges in their forests such as 
fire, drought and disease; but we are willing to make the best 
of it and go forward.
    However, I am convinced that under EPA's proposed rule 
change this could be the straw that breaks the camel's back. 
Many will throw up their hands and give in to the constant 
calls from land developers.
    Mr. Chairman, I ask you which is more environmentally 
damaging to our society, our tree farm that is managed as a 
working, sustainable forest protecting water quality, or the 
forest replaced by housing developments, shopping malls, and 
asphalt pavement which we know today as urban sprawl.
    I don't believe anyone can disagree with me that the forest 
is by far safer and healthier to our society. As our Nation's 
tree farmers prepare for their 60th anniversary and reflect on 
the accomplishments that we have provided to this Nation that 
includes clean water, we would hope that EPA would join us to 
celebrate, not regulate.
    This concludes my remarks, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Thomson.
    Ms. Buccino.

STATEMENT OF SHARON BUCCINO, SENIOR ATTORNEY, NATURAL RESOURCES 
                DEFENSE COUNCIL, WASHINGTON, DC

    Ms. Buccino. Thank you for the opportunity to talk with you 
today about critical steps needed to address the more than 
20,000 water bodies across the country that still do not meet 
water quality standards.
    My name is Sharon Buccino. I am a senior attorney in the 
Public Lands Program of the Natural Resources Defense Council. 
NRDC is a nonprofit organization with over 400,000 members 
across the country. NRDC's members depend on clean water to 
enhance their quality of life and protect their health.
    NRDC supports EPA's efforts to revive the Clean Water Act's 
TMDL Program. We also support EPA's proposal to eliminate the 
current regulatory exemption for silviculture point sources 
from NPDES permit requirement.
    I will focus on three points in my oral testimony. First, I 
want to clarify the extremely limited scope of EPA's 
silviculture proposal.
    Second, I will provide some examples demonstrating the need 
for EPA's new regulations where silviculture point sources are 
causing significant water pollution and therefore an NPDES 
permit is appropriate.
    Finally, I will explain why nonpoint sources should be 
included in the TMDL process. NRDC has urged EPA to move 
forward expeditiously with new regulations that will make the 
TMDL program more efficient and effective. We hope Congress 
will not interfere with this progress.
    In particular, we urge Congress not to adopt the 
legislation proposed by Senators Lincoln and Hutchinson. I have 
with me today a letter signed by over 250 organizations of 
citizens across the country opposing this legislation's 
exemptions for timber companies from clean water requirements.
    I ask that the letter be entered into the record.
    Senator Crapo. Without objection.
    Ms. Buccino. Let me briefly focus on a piece of EPA's 
proposal that addresses silviculture. There is significant 
misunderstanding about the proposal's scope. EPA's proposal 
does nothing to require permits from nonpoint silvicultural 
activities.
    The proposal simply eliminates the blanket exemption from 
the definition of point source that most silvicultural 
activities have enjoyed pursuant to regulation.
    To be affected by EPA's silviculture proposal an activity 
must fall within the statutory definition of point source which 
requires a discernible combined industry conveyance.
    EPA's silviculture proposal does not even appear to cover 
all point sources. After having identified the set of 
activities that would be considered point sources under the 
Clean Water Act, EPA only proposes to consider requiring a 
NPDES permit where, No. 1, the activity affects an impaired 
water body; No. 2, that activity is a significant source of the 
impairment; and No. 3, EPA has written a TMDL.
    Where such conditions exist, it is entirely logical and 
appropriate to use the NPDES system as a mechanism to ensure 
that appropriate pollution controls are adopted by the sources.
    EPA's proposal will not affect those silviculture 
activities that are taking appropriate steps to prevent water 
pollution. If a timber company is following all the best 
management practices adopted by its State and those BMPs are 
effective in preventing water pollution, EPA's proposal will 
not apply.
    Unfortunately, there are many places where silviculture 
operators are not taking the steps necessary to prevent water 
pollution. It is these operations that are the subject of EPA's 
proposal.
    Let me give you just one example. This photo, the one on 
the left there is of a skid trail at a timber harvest near I-40 
in Humphries County, TN. The second photo is the stream at the 
bottom of the skid trail.
    It is this kind of activity and damage that made EPA's 
silviculture proposal necessary. I think few would disagree 
that the skid trail pictures here is a discernible, confined 
industry conveyance from which pollutants are discharged into a 
stream.
    Since the skid trail falls within the Clean Water Act 
definition of point source, the Act requires the timber 
operator to obtain an NPDES permit before discharging any 
sediment or debris into the stream below.
    Numerous States have identified silviculture activities as 
sources contributing to the impairment of water bodies listed 
under section 303(d) of the Clean Water Act.
    I have brought a map of Idaho to illustrate the problem in 
that State. The lines marked on that map show Idaho waters that 
do not meet clean water goals. The ones in blue, it is probably 
hard to see the map, but you can see on the bar chart on the 
left there, it is well over half that are impaired as a result 
of sediment and much of the sediment does come from 
silvicultural practices.
    Then finally, I would just like to respond to the data 
issues raised by GAO. Of course better data and more funding is 
needed, but this need should not be used as an excuse to delay 
improvements to the TMDL program. Implementation of the TMDL 
program is already almost 30 years overdue. Data is sufficient 
to know we have a problem and to identify initial steps to 
address it.
    It is certainly better to start now. The problems will only 
get worse and cost more to fix later.
    In conclusion, the silviculture piece of EPA's proposal 
does not apply to nonpoint sources. While the requirement for 
an NPDES permit is limited to point sources, the TMDL process 
should address nonpoint sources and I didn't get a chance to 
explain that but I would be happy to do so in questions.
    Basically, the failure to address nonpoint sources simply 
ignores 90 percent of the problem. I hope that Congress will 
recognize the need for EPA's proposal and support the agency's 
efforts to ensure clean water for all Americans. Thank you.
    Senator Crapo. Thank you very much, Ms. Buccino.
    Mr. Olszewski.

  STATEMENT OF ROBERT J. OLSZEWSKI, DIRECTOR OF ENVIRONMENTAL 
            AFFAIRS, THE TIMBER COMPANY, ATLANTA, GA

    Mr. Olszewski. Thank you, Mr. Chairman and members of the 
committee. My name is Ronald Olszewski. I am director of 
Environmental Affairs for the Timber Company which represents 
the timberland assets, about 5 million acres of Georgia-Pacific 
Corporation. I appreciate the opportunity to present my 
testimony today on behalf of AF&PA.
    I come with a unique background. I am a technician, a 
hydrologist by nature. I have worked for State government in 
implementation programs for BMPs down in Florida before I 
worked for the private sector.
    So, I would like to talk to you about that a little bit 
today and how that, I believe, effectively works.
    I was also a member of the FACA that Ms. Bell was on. I 
have to tell you that the proposal related to silviculture in 
terms of the point source designation was never raised as an 
issue at all during that process and came somewhat as a 
surprise here last August. I will address that to some extent 
today.
    We also represent the country's manufacturers in the paper 
business and while most of my remarks will be confined to the 
forestry components of the rule, I would like to highlight some 
issues of concern to the manufacturing segment of our industry 
also. One of these issues that has come up in the GAO testimony 
this morning is the data concern issues. I would like to also 
put my 2 cents in on that one, if I could.
    An interesting point was raised by our folks from GAO, the 
fact that six States have the data needed to list. I chair the 
industry's committee that is working on this subject.
    We had a field trip in northeastern Florida last week where 
we looked at a watershed called Plummer Creek which turns out 
was listed with the use of three grass samples from a 
construction site where it crossed I-95, a definite 
misrepresentation of water quality conditions in that basin.
    It resulted in that water body being on the impaired list. 
When we met with the folks who owned land, timberland, in that 
4,000-acre watershed, they have been involved with various 
agencies trying to unwind that process. They said they had 
collected data that they estimated to be somewhere in the cost 
for them of $100,000 to $120,000, just to get that watershed 
delisted. It is a fairly complex watershed, but think about 
that, a 4,000-acre watershed and they spent $100,000 minimum to 
delist. That is $250 an acre.
    It is a major, complex issue we are dealing with in many 
instances and I think that is a key point.
    I would like to go on and talk, however, about the point 
source designation issues for forestry in particular. I want 
everyone to understand that forestry is not trying to escape 
their responsibility in this process. We want to be a 
participant in the TMDL process.
    Ms. Bell heard me say that many times in the FACA, but I 
think it is the rules, it is the authority that we play by in 
the TMDL process. We are not comfortable with some of what has 
happened. For us, we are a large land use all over the country, 
one of the largest. I think everyone would recognize we are one 
of the lowest intensity land uses around the country.
    I can't tell you we are perfect. You know, if you have a 
regulatory program for someone you could come up with a photo 
like you did today. We certainly don't condone that. We don't 
support it. We think we are dealing with those things 
aggressively and I will tell you some ways we are doing that.
    But let me get into the issues of the point source 
designation here for just a minute. I think that today I would 
like to talk about that to some extent. I would like to first 
explain the background of dealing with regulation affecting 
forestry in the past.
    In the original Clean Water Act regulations, EPA chose to 
exclude certain activities, including all silvicultural 
activities, from the NPDES program without regard to whether 
they were point sources.
    When some environmental groups challenged this in the 
1970's, the Federal courts ruled against EPA and ordered the 
agency to identify those specific activities that are point 
sources.
    EPA responded with rules back in 1976 that identified four 
specific, discrete conveyances, point sources associated with 
forestry operations. They concluded at that point that 
everything else associated with forestry was a nonpoint source.
    EPA stated in their proposed rulemaking at that time that 
the Clean Water Act and its legislative history, and I am 
quoting, ``made clear that it was the intent of Congress that 
most water pollution from silvicultural activities be 
considered nonpoint in nature.''
    Yet, EPA has proposed to eliminate the following activities 
from categorization as nonpoint source: nursery operations, 
site preparation, reforestation, cultural treatment, thinning, 
prescribed burning, pest and fire control, harvesting 
operations, surface drainage, road construction and 
maintenance.
    Instead the EPA proposes to redefine these as point sources 
under some circumstances.
    Now I am somewhat frustrated by this process at this point 
in time. Indeed, first of all, tree planting, planting of 
trees, could be designated as a point source with a discrete 
conveyance. That doesn't make a lot of logical sense to me as a 
citizen.
    Further, I have testified before a number of committees on 
this subject, but Secretary Browner has been making the rounds 
stating that the TMDL program is not designed to regulate 
nonpoint sources.
    I guess that is true, but from our perspective what she has 
done with silviculture and the agency has proposed with 
silviculture is basically to potentially redefine everything we 
do as a point source. So it is kind of a backward way to 
address the same issue which is somewhat frustrating.
    Further, this kind of frames the NPDES program almost to 
use it as a punitive action. I don't think that is what the 
Senate had in mind when this program was developed years ago.
    For forestry this exposes us to a number of scary legal 
paths when you open this door, citizen suits, Federal 
endangered species consultation around forest reactivity and 
EPA has stated, and others, that this will have limited impact.
    I have to tell you today, Senator, we don't have a lot of 
comfort in that right now when we look at places like the 
Garcia River in Northern California where EPA has stepped in to 
do a TMDL on behalf of the State and has clearly indicated that 
in a State with what is widely regarded to have the most 
rigorous forest practice act regulation in the country, they 
are not satisfied with that.
    They want further measures in dealing with the 
silvicultural nonpoint sources at this point in time but 
potentially point sources if this moves forward.
    So we are greatly concerned about this issue.
    The good story for us is a lot of good things are happening 
in terms of dealing with nonpoint source issues around the 
country. States do have significant oversight.
    I am not familiar with the laws in Tennessee, but most 
States have some ways they can reach ``bad actors,'' if you 
will, erosion sediment control laws that State water quality 
agencies implement and States have taken the option to regulate 
forestry through forest practice acts in some instances.
    In other instances they have dealt with non-regulatory 
programs like Georgia. I have brought a revised Georgia BMP 
program here that was just developed last year. It was 
excellent work, a mixed team of the environmental community, 
the forestry community, agencies of government that have worked 
on this program. I am going to leave it and submit it for the 
record, if I could.
    Senator Crapo. Thank you, Mr. Olszewski.
    Ms. Moore.

     STATEMENT OF DINA J. MOORE, NATIONAL CATTLEMEN'S BEEF 
                   ASSOCIATION, KNEELAND, CA

    Ms. Moore. Thank you, Mr. Chairman and members of the 
subcommittee. I am Dina Moore and I am honored to be here today 
to address this subcommittee on behalf of the National 
Cattlemen's Beef Association, representing America's one 
million cattle farmers and ranchers.
    While my full-time job is as a partner with my husband and 
family on our 8,000-acre commercial cattle and timber ranch in 
northern California, I am proud to actively participate in our 
local watershed efforts.
    I have done extensive work with EPA on TMDLs conducting 
historical narrative interviews. I have a completed copy of our 
watershed narrative that I would like to submit for the record.
    Ms. Moore. Assisting in public outreach and education and 
working collaboratively with EPA in building a consensus on the 
development of TMDLs in the Van Duzen River watershed.
    I also founded and am current president of our local 
watershed working group, the Yager/Van Duzen Environmental 
Stewards, or YES. The mission statement of YES most clearly 
states one of my own personal goals, to ensure the 
environmental integrity of our watershed while maintaining our 
heritage and the economic sustainability of our endeavors.
    I am here today to tell you about what I have learned from 
my experience. One of the things I have learned is that there 
must be better collaboration between the Federal and State 
agencies. The resource, government and landowner would best be 
served if government could address resource issues in a clear 
and consistent manner with a single unified voice.
    The Federal Government should use its powers to encourage 
States to implement a one-stop shop where land owners can deal 
with all agencies at one time and place. The 319 program could 
be the mechanism for integrated State and Federal efforts.
    Delisting and listing of watersheds needs to be clarified. 
While the EPA's proposal does help ensure that listing 
methodologies are more specific, it doesn't provide guidance 
for delisting.
    Again, I refer to our watershed and my own experience. None 
of the landowners knew that it had been listed as impaired. 
When EPA did the TMDL, it broke the watershed into three 
distinct areas: the lower basin, middle basin, and upper basin.
    Those areas were characterized by different geologic types, 
distribution of anadromous fish, and land management ownership 
patterns. EPA's own sediment source assessment found that 
natural erosion accounted for 84 percent of the erosion in the 
middle part of the basin. This portion of the watershed is 
comprised of ranches like my own.
    Concurrently, on our ranch, we participated in an ongoing 
study by the University of California Cooperative Extension on 
the effects of cattle grazing in a riparian area. After an on-
ground assessment using three different Federal field 
assessment tools, EPA's, NRCS's, and BLM's, our streams with 
the EPA assessment rated 18.4 out of 20; 20 being the highest 
mark.
    NRCS rated 9.4 out of 10; 10 again being the highest mark.
    BLM's were rated properly functioning. Given all of the 
above information, I question whether our portion of the 
watershed should have been listed as impaired.
    Pacific Lumber Company is a neighboring landowner in the 
lower part of the basin. The concern has been expressed that 
this is more a political process than a scientific process 
driven by litigation.
    The private sector will clearly incur costs from more 
stringent regulations. As more regulations are being mandated 
from multiple national and State agencies the cost will trickle 
down to the landowner. His only way of covering that cost is 
with heavy extraction from the land-based resource that he 
manages.
    There is no compensation, reimbursement, or incentive to 
the landowner for the time and knowledge that it takes to 
comply with regulation. There is no direct clarity for 
landowners faced with weaving their way through meeting all the 
regulatory requirements.
    My fear is eventually we will have to hire a professional 
consultant and out-of-pocket expense that can be staggering.
    The monetary return that comes from a cattle ranching 
enterprise alone. The cattle and the range that they live on 
provide enough of an economic return to pay for their direct 
costs, overhead costs as well as provide families like mine 
with a below-poverty level, even when the cattle market is in 
an upswing. This enterprise alone cannot cover the previously 
mentioned hidden costs. Other resources will need to be 
developed and extracted.
    As managers of a working landscape, we know that we cannot 
mine the resource without long-term negative effects. We have 
been given the resource to hold in trust for future 
generations.
    Oftentimes we feel that we are meeting the needs of 
government to the detriment of the environment we are managing. 
My counterparts in the mainstream environmental community 
recognize the cost to the environment of greater regulation as 
we do, and share our beliefs that government should provide 
greater incentives that encourage stewardship.
    Let us hold out a carrot rather than wield a stick. Other 
options that become a reality when we are no longer 
economically sustainable are selling to larger industrial 
landowners or breaking large landscapes into subdivisions and 
ranchettes which clearly cause a degradation to the 
environment.
    I recognize the important role and need that regulation has 
served in protecting the environment, nevertheless, I firmly 
believe that further regulation will swing the pendulum in a 
direction that will not serve in the best interest of the 
resource, government or non-industrial landowner.
    Thank you for the opportunity to participate in this 
important decision. I look forward to a day when we are all 
working collaboratively on resolving the issues of managing a 
natural, working landscape.
    Thank you.
    Senator Crapo. Thank you very much, Ms. Moore.
    Let me go first to you, Joan. The question I have is sort 
of back to this point source versus nonpoint source conflict 
that seems to be facing us here.
    I know that you are familiar with food processing issues 
and facilities and I am assuming that they are significantly 
point source entities. Is that right?
    Ms. Cloonan. That is right. The food processing is mostly 
point source. Our suppliers are all nonpoint source.
    Senator Crapo. So you've got an interesting little tug of 
war going on there in your particular part of the world or the 
industries that are dealing with this.
    Ms. Cloonan. Right.
    Senator Crapo. Can you just describe to me how the EPA's 
proposed rule would either benefit or negatively affect the 
food processing industry?
    Ms. Cloonan. I think it will make it much more difficult 
for us. Our suppliers, that is probably 90 percent of the cost 
of our operation, the raw material, potatoes for French fries.
    I think that their costs, if they are being requiring to do 
some things under regulatory pressures, I am going to back off 
and say that I am optimistic and I think voluntary programs 
where we work with the Department of Agriculture, the 
Department of Lands, the Soil Conservation Services and all and 
Development of BMPs and the working out of BMPs is going to be 
the best way to do this.
    To have the demands put upon the State, it is going to cost 
the State more money, which costs us more money. It is going to 
cost the farmers more money to try to comply in a top-down type 
approach.
    I think the approach that Idaho is proposing to use, things 
like tradeoffs, effluent trading where farmers actually get a 
benefit through their irrigation districts or whatever, of 
putting in BMPs, putting in wetlands.
    We have already put in wetlands in one of the areas, Twin 
Falls Canal Company has a wetlands program which is done in the 
context of a TMDL and done in the context of a voluntary group, 
the stakeholder group getting together.
    This was not an effluent trading. Once you have effluent 
trading the point sources whom they need to reduce can go to 
the nonpoint sources and put in a wetland which is going to 
benefit both of them.
    I think it is very complicated. I don't know if I can 
pinpoint one particular.
    Senator Crapo. But the voluntary aspect is something that 
you think can work?
    Ms. Cloonan. I do.
    Senator Crapo. When you talked about the costs, I am 
assuming and I would just like to ask you this, that you are 
also of the opinion that the same degree if not better degree 
of environmental protection can be achieved without the costs 
that would be imposed.
    Ms. Cloonan. Absolutely. I think that by using the free 
market methods that the costs are reduced.
    Senator Crapo. Do you feel that application of this rule, 
if it occurs, will impede efforts in Idaho that are already 
underway?
    Ms. Cloonan. I am concerned that it would. One area would 
be in the implementation, for example. The pilot program that 
is underway for effluent trading, I don't think we could 
include implementation in a TMDL and get the TMDL done in time 
and still include something innovative like that.
    We are still working on the details. It turns out that it 
is not simple knowing where to trade, you know, an upstream 
reduction for a downstream nonreduction or whatever.
    I think that the implementation part is probably one of the 
big areas where it would be a detriment to us.
    Senator Crapo. Thank you.
    Ms. Buccino. Senator, I would like to address the issue of 
costs, if I could real quickly.
    Senator Crapo. Sure.
    Ms. Buccino. I just wanted to add two points to what had 
already been said. I think there has been a lot of focus on the 
low number that EPA came up with.
    I think it is important to remember that this regulation, 
the proposed regulation, is about relatively minor changes to 
TMDL program regulations that are already on the books.
    The cost figure is the incremental costs of the additional 
requirements.
    The second point that I would like to make about costs is 
that it is important to remember the costs of inaction in the 
calculation.
    Senator Crapo. Well, those points are well taken. With 
regard to that, let's clarify that issue of the data as well. 
You were here for the testimony of the GAO?
    Ms. Buccino. Yes.
    Senator Crapo. It seemed to me as they talked about the 
very low level of data that we had in the various types of 
water bodies and I don't if you could see the chart. Well, 
actually, they didn't put it up. The chart that I refer to was 
on Page 9 of their report that they did not put up.
    It was a chart that showed that really the vast majority of 
the analysis was either not done at all or was done in what has 
been described as ``drive-by'' or very low levels of data.
    Given that, wouldn't the costs of achieving that type of 
analysis be properly considered here as new costs that this 
rule is requiring or are you saying that those costs that we 
were talking about in their testimony would not necessarily be 
attributable to this rule?
    Ms. Buccino. I think that is correct. In the cost analysis 
that EPA did I think they focused on the costs of implementing 
the new requirements. I don't disagree that better data and 
more funding to help address particularly nonpoint source 
issues is appropriate.
    Senator Crapo. Let me continue. Since we are talking about 
this. In today's hearing and even more particularly in the 
previous hearing that we held, we have had a lot of testimony 
that the proposed rule is going to actually interfere with 
other types of water improvement efforts that are underway and 
that things are moving in the right direction.
    I get the feeling from that testimony that things are 
moving in the right direction, that we have a lot of good 
things happening at the State level that this rule could 
interfere with.
    In the pictures that you put up, if those pictures are 
typical then that would be contrary to that other evidence.
    I guess I had a question about those pictures. Would you 
consider those pictures to be typical of the kind of activities 
that we have in, say, silviculture in the country or not?
    Ms. Buccino. I think there are plenty of places, and the 
gentlemen from New Hampshire is probably a very good example of 
where practices are in place that are working to address 
potential water pollution problems.
    Unfortunately, there are many places where they are not. 
That is why you end up with so many water bodies listed by 
States as impaired, in part due to silviculture activities.
    I think the number that EPA has given is around 350, but 
that is just from the 32 States that actually report source 
information, because they are not required to. In fact, Idaho 
has not reported source information.
    Washington and Oregon have not either. So there is 
significant States where logging is occurring that are not 
included in the 350 number.
    Again, EPA's proposal only addresses those situations where 
the job is not getting done. It will not affect places where 
BMPs are implemented and are effective.
    Senator Crapo. Do you know whether the site that you had a 
picture of there was managed under BMPs? Was it in compliance 
with BMPs?
    Ms. Buccino. No. The site there was not in compliance with 
BMPs, but the State had difficulty actually addressing it. 
Those are relatively recent photos and they are still in the 
process of actually pursuing an enforcement action to address 
the situation there.
    But one of the obstacles for the State addressing the 
situation is the current regulatory exemption from the 
requirement for an NPDES permit.
    Senator Crapo. Was that just a timber harvest or was that 
land use for some other purpose?
    Ms. Buccino. No. It was a timber harvest.
    Senator Crapo. Let me ask you, and I do want others to have 
an opportunity to get in on this question. Back to the original 
question I was getting at, and that is, there has been a lot of 
testimony about how the proposed rule is going to interfere 
with things that are already underway at the State level.
    I am sure you come from the perspective that things are not 
happening well enough at the State level or that we need to do 
more and that this rule will help that happen.
    There seems to be a very significant conflict on that.
    Could you address that?
    Ms. Buccino. Well, my perspective is from the point of view 
that the TMDL program was put in place by Congress in 1972, 
almost 30 years ago. There has been significant delay in 
achieving the Clean Water Act's goal of restoring water 
quality.
    Senator Crapo. Would any others like to comment on this?
    Mr. Thomson.
    Mr. Thomson. Thank you, Mr. Chairman. I take exception to 
the photos that were shown. Those clearly are not what tree 
farmers do or for the most part those individuals that are out 
practicing good stewardship on the land.
    Carol Browner and others, in these hearings, have referred 
to those as ``bad actors.'' In any industry there are a few bad 
actors. But the fact of the matter is there are State laws and 
Federal laws on the books today to take care of those bad 
actors. And I think they should be taken care of.
    The Federal Government does not need to burden us with 
another layer of bureaucracy. That is what would happen.
    The fact of the matter is, on water quality in 1996 EPA 
dropped silviculture from its list of seven leading sources in 
river and steam impairment. The same year silviculture 
contributed only 7 percent of the total stream impairment.
    So, what this industry and non-industrial landowners have 
been doing is great. What it comes from is the voluntary 
practice of best management practice. This is the publication 
that New Hampshire works by.
    Senator Crapo. Do all 50 States have this?
    Mr. Thomson. Forty-seven States are practicing voluntary 
best management practices. This is the avenue which I would 
encourage you and the others to hopefully encourage EPA to 
follow, voluntary, not regulatory. Thank you.
    Senator Crapo. Mr. Olszewski.
    Mr. Olszewski. Yes, I have got to followup. I guess I am 
somewhat frustrated by the EPA proposal with regard to the 
point source designation because I think it ignores the fact 
that the States do have a fair amount of State-specific 
oversight authority.
    Ms. Buccino talked about the fact that the State is trying 
to deal with this. I would be interested in knowing what 
happened because we have many examples around the country of 
the States dealing with someone who truly is a ``bad actor.'' 
The opportunities are there in most States and most instances 
and the cases are around.
    As I said earlier, you know, showing one slide, I mean I 
could show a slide of something that clearly is a point source 
discharge that is violating the law right now.
    I think the point that Mr. Thomson made is the relatively 
low impact of us, forestry, as a nonpoint source relative to 
pollution inputs around the country bring me back to the 
concern that we are trying to attack a flea with a sledge 
hammer here.
    We ought to let these State programs try to work things 
out, I think. In the TMDL program we want to be a player. We 
want to be a participant. Really, implementation on the TMDLs 
is a new ballgame for people.
    I think it is only fair to give the forestry community a 
chance to work through things like the BMPs that Mr. Thomson 
has shown, these that I have shown in Georgia.
    One other quick point, a lot of consensus building is going 
on in the States to build documents like this. As I said 
earlier, we have participation from a lot of folks in the 
environmental community to develop these BMPs in Georgia as an 
example.
    I think there is some potential damage to be done by some 
Federal oversight in some instances of what is going on with 
good stories that are making excellent progress in States like 
Georgia around the country.
    Senator Crapo. Ms. Moore.
    Ms. Moore. Yes, and I guess I would say that obviously my 
perspective comes from my experience in the State of 
California. Currently, right now, the State Water Resources 
Control Board, which is our governing body for dealing with 
TMDL is in a holding pattern. They are waiting to see what 
happens. Is this going to pass in June.
    At the same time, I, as a private landowner from the grass 
roots level up have dealt with EPA in developing our TMDL 
allocations. We would like to move forward now and be able to 
work with our regional water quality control board and put in 
place our implementation plan.
    Everyone is holding. Again I would go back to the fact that 
from my perspective, what I would really like to see is a 
coordinated effort all the way around. I think that right now 
there are programs in place that allow the Federal Government 
to let the State governments work toward working with local 
government at the local level to address these issues.
    I don't know that it can come from the Federal Government 
down; it needs to come from the grass roots up.
    Senator Crapo. Did you want to jump back in and defend 
yourself there, Ms. Buccino?
    Ms. Buccino. Well, I could address the point of California, 
specifically, because as you may be aware, in fact, today the 
Federal courts are hearing a case that addresses the issue of 
whether it is appropriate to include nonpoint sources in the 
TMDL process.
    The State of California has actually filed a brief in that 
case in support of EPA and urging the court to recognize both 
the need and the legal authority for including nonpoint 
sources, because the State recognizes the need to address those 
sources of pollution to deliver clean water.
    Senator Crapo. Mr. Thomson.
    Mr. Thomson. Mr. Chairman, I would like to make a point. I 
don't know that it has been made today. It may have been in 
some of the other hearings.
    But when we are talking about forestry, spruce and fir 
silviculture, and tree farming, we are talking about rotations 
that have a minimum of 60 to 70 years in New England, and 
hardwood species, which have 100- to 120-year rotation.
    We are not cutting annual crops like tobacco, corn, or 
wheat. What I am doing on my property today, I will never see 
the end result of that. Unfortunately, with the ice damage, it 
will be my grandchildren that will actually see that.
    As I indicated, we are prepared to roll up our sleeves and 
continue to go forward. But if the Federal Government lays out 
some amount of additional regulations on us and it is not 
economical for us to continue and the developer has been 
calling us, we will sell to the developer and that clearly is 
not what is in the best interests of society.
    Going back to the best management practices, because I 
think this is really the key issue here in this whole argument, 
that 47 States are practicing this today. I am afraid that if 
we continue down this road that all of the good will that has 
been built up between the landowners, industry and the 
government, both State and Federal, will be lost overnight.
    I would suggest that this committee encourage EPA to leave 
forestry as a nonpoint source and to increase the funding 
through section 313 and increase the education on BMPs and 
let's work together on a voluntary basis.
    Ms. Buccino. I just have to come back to the point that 
these regulations do not affect and do not add any new 
requirements to situations where the BMPs are working and where 
they are being followed.
    Unfortunately, there are places, as we see from the list of 
impaired water bodies, where they are not working. That is the 
focus of EPA's----
    Senator Crapo. The question that that raises to me is sort 
of a jurisdictional question. If they are not working, does 
that then make them a point source and therefore justify EPA 
regulating them or should they still be considered nonpoint 
sources and dealt with in terms of trying to improve the BMP 
process?
    In other words, I don't see how the fact that they don't 
work justifies EPA stepping in and treating them as point 
sources.
    Ms. Buccino. But all EPA is doing is eliminating the 
blanket exemption, the categorical exemption that these kinds 
of activities have enjoyed in the past. There is nothing in the 
regulation that actually designates them as point sources.
    The activity would still have to fall within the statutory 
definition of point source, a discrete, discernible conveyance.
    I brought the picture to show that there are some kinds of 
practices that would fall within that definition and to date 
they have been excused from the permit requirement. EPA has the 
legal authority to decide that changing that exemption is 
appropriate at this point.
    Senator Crapo. Mr. Olszewski.
    Mr. Olszewski. I guess we don't want to go down the legal 
debate route, but that is not a position that we would 
predictably be in agreement with.
    Senator Crapo. I am not surprised to hear that.
    Mr. Olszewski. We don't believe this 27 years of the Clean 
Water Act history, and as my testimony outlined and I outlined 
briefly, we think there was a decision that was made back in 
the 70's to designate those four sources as point sources in 
terms of silviculture.
    Now, this proposal is far-reaching. We have talked about 
everything. As I said in my example, even tree planting, they 
have listed that specifically, reforestation. How do you get a 
discrete conveyance, something that connotes what we all think 
of as point sources out of things like that?
    I could go on. I mean basically it is included, their real 
proposal has included everything we do silviculturally, 
everything.
    Senator Crapo. Ms. Moore.
    Ms. Moore. Senator, you mentioned something that really, I 
think, raised a thought or concern of mine. You said there is a 
jurisdictional question. I think that that is, at least from my 
perspective, one of the most challenging issues that we are 
dealing with.
    When EPA states, ``Well, we just want to, you know, ensure 
or we just want to cover it a little more,'' well, right before 
I came to Washington I attended a public hearing for NMFs, 
National Marine Fisheries. They were threatening listing 
steelhead as threatened in my watershed because there was no 
longer habitat for them.
    Now, our watershed was listed as impaired because the 
sedimentation did not provide habitat for the anadromous fish.
    So in essence, what I am seeing from my perspective is that 
I am dealing with two different governmental agencies, Federal 
agencies over the same issue and the same watershed with the 
same landowners. Yet we are having to deal with both of them in 
different playing fields. They have different agendas and 
different time lines.
    I think that we need to get back to how are we really going 
to deal with the resource in the best sense and I don't think 
that by continuing to enlarge these programs is really helping 
us.
    I think that what we need to do, if we really want to look 
at taking care of that resource, is be able to have a 
coordinated plan where all of the government agencies are 
working together in coordination and then we can effectively 
deal with them as resource managers and protect the research.
    Senator Crapo. Does anybody else want to jump in before I 
ask another question?
    Pursuing this line a little bit further, it seems to me 
that we do have a question of jurisdiction, of whether what the 
EPA is seeking to achieve here is something that they are 
authorized by law to achieve.
    I am not sufficiently trained in the legal background of 
this particular aspect of the law to know how the precedent has 
developed.
    But if you look at, say, the skid trails that do, you know, 
in their appearance appear to be a path by which a distinct 
point source of water could be created; has that historically 
been determined, been called a point source or has even that 
kind of thing been treated as a nonpoint source?
    Ms. Buccino. Well, the reason it has not is because there 
has been a regulation that categorically says it is not. Just 
to step through the legal authority real quickly, you look at 
the statutory language first. There is no explicit exemption 
for silviculture under the definition of point source.
    That is limited to agricultural storm water runoff. 
Therefore, EPA has the authority, courts will defer to an 
agency to interpret ambiguous statutory language. In the past 
they decided that they would not include these things within 
the definition of point source.
    Now, they have decided in part, because of the impact that 
silviculture is having on water pollution and the need now 
through the TMDL program to do something about it, that there 
is a rational basis for changing that prior decision. Courts 
have deferred to an agency's determination to do that.
    Senator Crapo. And as I look at your picture, I can see the 
argument that is being made there because there is sort of a 
very discrete source of travel for water to a water body there.
    But as I hear the testimony of Mr. Olszewski and Mr. 
Thomson, they indicate that what is being included here is very 
broad and I assume much broader than something that is like a 
channel that is being created.
    Ms. Buccino. But in my point of view they are not. In fact, 
I don't think courts would include them because you still fall 
back to the statutory definition, a discrete, discernible 
conveyance.
    If something like planting a tree doesn't involve a channel 
or conveyance, then it is not a point source and it is not 
going to require a MPS permit and nothing in EPA's proposal 
requires that.
    Senator Crapo. Mr. Olszewski.
    Mr. Olszewski. Even if I was to buy the argument, a couple 
of lines from my testimony,

    The section 319, 1987 amendments revised the 208 program 
that required States to develop a process to identify 
silviculturally related nonpoint sources of pollution and so 
forth procedures and methods to control to the extent feasible 
such sources.

    In November 1990 EPA promulgated storm water regulations, 3 
years after the 1987 amendments were enacted. At that time EPA 
declared silvicultural point sources do not include the very 
same activities they are claiming today are point sources.
    Then as recently as 1995 EPA Phase II storm water report 
presented to Congress did not identify silviculture activities 
as appropriate for regulation under the storm water program.
    I am puzzled by what has changed here. Why this history of 
27 years that we looked at these forestry sources as nonpoint 
sources and EPA has continuously supported those thoughts. Even 
if I bought the argument--which I don't--what has changed here 
at this point in time to declare, and the list is clear, I mean 
it is in the broadest sense essentially everything we do, 
Senator.
    Senator Crapo. Did you say that you had something, Mr. 
Thomson?
    Mr. Thomson. I just wanted to point out again that the 
water quality, and this is from EPA, in 1996 silviculture was 
removed from the leading streams and rivers of impairment and 
the same year silviculture had contributed only 7 percent to 
the total stream impairment.
    The argument I just heard sounded like it was going the 
other way. The fact of the matter is that it is not. Two days 
ago in my meeting in New England with Ron Manfredonia, EPA's 
regional administrator that Senator Smith referred to in his 
statement, and I asked him twice, if I could quote him in 
Washington because I told him I was coming here. The fact of 
the matter is he said that there is no problem in New England 
whatsoever as far as forestry is concerned.
    We can all search around and find a picture like that. That 
individual, shouldn't be doing that. But that does not indicate 
what is going on in the forest today by good land stewardships. 
It clearly is not.
    Senator Crapo. Sharon.
    Ms. Buccino. It is important to look at what is happening 
in individual locations. While the overall figure may be 
small--I don't know the accuracy of that figure--but even if it 
is only 7 percent, which to me is still significant, there are 
areas where silviculture is a significant source of the 
problem, like Idaho, for example.
    It is those areas that EPA is proposing to do something. 
The statement about New England, yes, in New England there are 
other industrial sources that clearly contribute and contribute 
more than silviculture to water pollution problems.
    But there are areas of the country where silviculture is a 
significant part of the problem.
    Senator Crapo. Thank you. I have another meeting that I 
have to get to really fast here. But I wanted to ask one more 
question and then I am probably going to have to wrap it up.
    The question is for you, Sharon. So I can understand where 
you are coming from on this, if you were to have, say, a skid 
row like we have seen today that did comply with best 
management practices so under the State approach it was being 
managed in such a way that it was acceptable for the standards 
that the State was applying and was presumably meeting the 
water quality standards that were applicable.
    Would that, in your opinion still be regulatable by EPA as 
a point source?
    Ms. Buccino. Well, under EPA's proposal they have 
explicitly said that that situation would not require a permit 
because what they have said is that they would only consider 
requiring a permit where the water quality is impaired.
    So you have a violation of the water quality standard and 
it has been shown that the silviculture activity has been 
contributing to that problem.
    Senator Crapo. But I can see where you would have an 
impaired water body and a BMP being met and EPA would then 
still consider it regulatable as a point source?
    Ms. Buccino. Well, if the BMP is being met and the 
silviculture activity, the skid trail, is still contributing to 
violations of water quality, then a permit is appropriate in 
that case.
    Perhaps really the solution is to make the BMP better. It 
is not getting the job done in protecting water quality.
    Senator Crapo. OK. Well, I realize that we could go through 
this a lot more and I would like to, actually, but I am being 
told that I have urgent things I have to get to.
    So, I want to thank you all for coming here. I would 
encourage you to continue to work with us. We are going to in 
some way deal with this. You can obviously see that it has 
stirred up enough around the country that we are going to be 
resolving it, if we can, in some way.
    I want to understand it well enough that we do what is 
going to be the best for the water quality of the country and 
has the most minimal cost impact on the people.
    You can have the last word, Mr. Thomson.
    Mr. Thomson. Senator, I just want to congratulate you and 
Senator Smith and the other members for considering, and it 
sounds like Senator Smith is going to have a field hearing 
outside of the Beltway.
    I really encourage you and others to come outside the 
Beltway and see what we are doing.
    On my tree farm you are more than welcome and even if you 
want to bring Administrator Carol Browner, I would enjoy that 
because I can prove to her that the proposed rule is wrong.
    Senator Crapo. Well, we appreciate that invitation. You 
might be interested to know that when the idea of having some 
field hearings out in different parts of the country was first 
floated by Chairman Smith, we were inundated by members around 
the country who wanted to have it in their area.
    It was not just because they wanted to have a hearing in 
their area, but because the issue is so big nationwide. I have 
rarely seen an issue that is as important as you heard it was 
in Arkansas today and Idaho and New Hampshire and so forth 
around the country.
    So this clearly has the attention of the people around the 
country. That is why I am so convinced that we will be doing 
something to address it here and we want to be sure we do the 
right thing.
    So we appreciate your time and effort to be here testifying 
with us. I apologize that we are going to have to wrap it up 
before we all have everything said that I am sure we would like 
to say.
    Don't hesitate to continue contacting us and working with 
us as we proceed.
    This hearing will be adjourned.
    [Whereupon, at 1:50 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]

     STATEMENT OF HON. TIM HUTCHINSON, U.S. SENATOR FROM THE STATE 
                              OF ARKANSAS

    Mr. Chairman, I thank you and the entire subcommittee for allowing 
me to speak on behalf of my Arkansas constituency.
    I am here because of the outcry from my State in response to the 
EPA's August 1999 proposal to expand the Total Maximum Daily Load 
(TMDL) and National Pollutant Discharge Elimination System (NPDES) 
permitting programs. I believe it is the intent of the EPA to treat 
traditional agriculture and forestry activities as potential point 
source polluters. I also believe this is a deliberate attempt to 
circumvent the Clean Water Act and legislate through regulation--
directly contradicting Congress' intent when it debated and passed 
legislation on non-point source pollution.
    I remember participating in this debate when I served in the House 
and recall specifically that States would be granted the ability to 
define and enforce this matter, absent the intrusion of the EPA. That's 
why we have a Congressional Record--to remember what was said years 
ago. I recommend the EPA crack open it's copy of the Congressional 
Record before launching its next overriding initiative.
    Mr. Chairman, farmers, foresters, private landowners, and community 
leaders across Arkansas are deeply worried that requiring States to 
enforce stricter TMDL standards will stretch State, local and private 
resources to the breaking point. In January, I spoke at a public 
meeting in El Dorado, Arkansas, which drew 1,500 concerned citizens. 
Weeks later, a meeting in Texarkana, Arkansas, attracted 3,000 
landowners. Last week, I spoke to a crowd of 3,300 in Fayetteville, 
Arkansas--numbers that Senator Lincoln can confirm as true. She, too, 
was there.
    This unprecedented public turn-out begs the question as to who is 
driving this policy. It is clear that implementing the EPA's new 
proposal will only divert already limited funds and resources away from 
successful State implementation programs and hand them over to 
bureaucratic Federal procedures and oversight.
    While testifying before the House Appropriations Committee, 
Administrator Browner said she felt the EPA was forced to act in 
response to lawsuits brought by environmental groups, like the Sierra 
Club, who were dissatisfied with the Agency's lack of enforcement at 
the State level. The fact that special interest groups are driving 
Federal policy by intimidating States and the EPA with litigation runs 
completely contrary to how I believe our government should be run. It 
is not democratic and it is not fair to Arkansans who work hard to 
manage their land.
    The thousands of people who attend these meetings have families, 
busy schedules, and many other responsibilities, but they are willing 
to sacrifice their time to learn more about this proposed regulation 
and how it will effect their livelihood. One of the core issues 
motivating Arkansans to attend public meetings by the thousand is 
trust. Ultimately, the people of my State do not trust the EPA. In 
other words, the EPA has not earned the trust of my constituents.
    The EPA has done an incredibly poor job communicating their 
proposal to those whom it will effect the most. During my time in 
public service, I have never seen this kind of public outcry to 
anything the EPA has done and it is our job as their elected 
representatives to address this matter legislatively to ensure that our 
initial intent when passing the Clean Water Act is preserved.
    In terms of States handling this matter, Arkansas alone has put 
forth a tremendous effort to implement State-wide Best Management 
Practices and other water quality regulations. Our Poultry Litter 
Management Plan is a model for other State-level plans. Arkansas' 
forest industry has reduced its impact on local watersheds by 85 
percent. Simply put, the States are getting the job done and must 
continue to have the freedom to handle this matter on the local level--
not from Washington. That is why I have introduced legislation to 
prevent this proposed rule from impacting two of my State's most 
important industlies--agriculture and timber.
    My bill, S. 2130, consists of two simple parts. First, it restores 
the exemption for silviculture operations and exempts agriculture 
stormwater discharges from EPA's NPDES permitting requirements. Second, 
it defines non-point source pollution relating to both agriculture 
stormwater discharges and silviculture operations. The EPA under the 
current Administration has never ceased in its efforts to impose 
stricter, more expensive Federal environmental regulations on hard 
working Arkansans. In the end, I fear that this proposed rule will not 
only harm agriculture and forestry, but impede the water quality gains 
being made by States and private landowners.
    Mr. Chairman, the foresight of our Founding Fathers established a 
system of checks and balances by which the Federal Government must 
govern. The EPA is acting as though it is not accountable to either 
Congress or the American people. I encourage this committee to act on 
the people's behalf to ensure that this Agency will not implement rules 
outside the Clean Water Act.
    Again, I want to thank you for holding hearings on this important 
issue and fully intend to work with Senator Lincoln and our colleagues 
in the Senate to prevent the EPA from implementing this burdensome and 
unnecessary regulation.
                                 ______
                                 

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

    Thank you, Mr. Chairman for allowing me to testify before the 
Senate Environment and Public Works Committee this morning on the 
Environmental Protection Agency's new extension of the Total Maximum 
Daily Load regulations. This is an issue that will affect thousands of 
my constituents directly and immediately.
    Our State Motto, ``The Natural State,'' reflects our dedication to 
preserving the unique natural landscape that is Arkansas. We have 
towering mountains, rolling foothills, an expansive delta, countless 
pristine rivers and lakes, and a multitude of timber varieties across 
our State. From expansive evergreen forests in the South, to the 
nation's largest bottomland hardwood forest in the East, as well as one 
of this nation's largest remaining hardwood forests across the Northern 
one-half of the State, Arkansas has one of the most diverse forest 
systems in the United States. Most streams and rivers in Arkansas 
originate or run through these timberlands and are sources for water 
supplies, prime recreation, and countless other uses.
    In Arkansas, we enjoy a healthy and sustainable private forestry 
industry. Private forestry is an important part of the economy and 
infrastructure of Arkansas and this nation. My home State of Arkansas 
has a total land area of 33.3 million acres. Over 50 percent of this 
land area, 18.4 million acres, is forested. Today, 98 percent of the 
forest land is classified as timberland that can produce a harvestable 
crop of timber, and some type of harvesting activity is conducted on 
530,000 acres of private timberland annually in Arkansas. This 
represents approximately 3 percent of the State's private timberland.
    Key to our private forestry industry is preserving our forests, 
lands, and streams to ensure that forestry can continue in Arkansas. We 
have instituted Best Management Practices (BMP) and Sustainable 
Forestry Initiatives (SFI) to ensure that proper techniques are used to 
protect our water quality. These plans are voluntarily adhered to by 
over 85 percent of our private timberland owners. In fact, Arkansas has 
been recognized nationally for having some of the most successful BMP 
plans in the nation. Whether it's in our forestry industry or our 
poultry and pork industries, all of our agriculture and livestock 
industries are already doing what's right to ensure that Arkansas' 
rivers, lakes, and streams remain clean and safe for many generations 
to come.
    On August 23, 1999, the EPA issued new regulations to extend the 
Total Maximum Daily Load (TMDL) point-source regulations over some 
traditional non-point sources. This new regulation seeks to require 
normal forestry, animal feeding, and aquatic animal operations to 
obtain a point-source permit under the National Pollutant Discharge 
Elimination Program (NPDES).
    While the EPA maintains, and we all agree, that the EPA does not 
have the authority to regulate non-point sources of water pollution, 
this regulation seeks to change the definitions of point and non-point 
sources with regards to a few traditional non-point sources. Notably 
for forestry activities, the traditional definition of non-point source 
associated with the actions of harvesting, thinning, reforestation, and 
the like have been changed to that of a point source. So while this 
regulation does not seek to regulate non-point sources, it does seek to 
redefine some non-point sources as point sources.
    Mr. Chairman, in passing the Clean Water Act amendments of 1977 and 
1987, Congress sought statutory clarification for the traditional non-
point sources of agriculture storm water and agriculture irrigation 
return flows.
    None of us here seek to inhibit the goal of cleaning up and 
maintaining this nation's clean water supply. But merely requiring a 
point source permit for traditional non-point sources of water 
pollution is not the best answer to the problem of cleaning up our 
nation's rivers, lakes, and streams. In other words, these new 
regulations would require permits on the very things we want to promote 
in forestry--responsible harvesting and thinning operations, best 
management practices, and reforestation.
    We in Congress have already realized the potential impact of these 
new regulations. In November, 1999, we passed legislation that was 
signed into law to extend the required comment period on the new TMDL 
regulations until January 20, 2000. We did this knowing of the 
potential massive impact of this new extension of TMDL regulations.
    As stated in the announcement of the new rule, this extension of 
the TMDL regulations could have an economic effect of over $100 million 
on the silvicultural industry. While the EPA does not expect the rules 
to affect small businesses, I would assert that the majority of 
Arkansas' and the nation's private timber industry is considered to be 
small business. Many of Arkansas' private timberland owners consider 
themselves ``tree farmers.'' In addition, Arkansas Department of 
Environmental Quality of finials have said they do not have the 
manpower or the resources to comply with the proposed rule.
    In addition to the extended comment period, now closed, we have 
held three public meetings in Arkansas where thousands of concerned 
foresters and farmers have voiced their opinions on how the new Total 
Maximum Daily Load regulations could affect them. In El Dorado over 
1,500 farmers and foresters came out to learn about potential impacts 
of this regulation and over 3,000 came out in Texarkana, and over 2,000 
in Fayetteville.
    Responding to the concerns raised by my constituents, on February 
7, 2000, I introduced S. 2041 to statutorily classify silviculture 
sources of water pollution as non-point sources. This legislation will 
allow states like Arkansas to continue to use their successful 
voluntary Best Management Practices, Sustainable Forestry Initiatives, 
and current State regulations and law programs to reduce pollution from 
forestry-related activities while not adding unnecessary regulations. 
This legislation is not intended to undermine the EPA's ability to 
ensure that our Nation maintains a clean water supply; in fact, it 
accomplishes quite the opposite. It is an effort to enforce the fact 
that many forestry related activities are already adequately policed at 
the State level to ensure that water supplies do not become impaired. 
Many silviculture activities that benefit the environment, such as 
conducting responsible harvesting and thinning, voluntarily following 
best management practices, and promoting reforestation will actually be 
discouraged by the proposed regulation.
    My bill, very simply, follows the lead from the 1977 and 1987 Clean 
Water Act amendments and statutorily exempts forestry non-point sources 
of water pollution from being covered by the TMDL point source 
permitting regulations. My bill will statutorily designate the forestry 
activities of site preparation, reforestation, thinning, prescribed 
burning, pest and fire control, harvesting operations, surface 
drainage, road construction and maintenance, and nursery operations as 
non-point sources.
    We must ensure that the original Congressional intent remains with 
regard to the authority of the EPA over point and non-point sources of 
water pollution. Congress has always intended rainwater runoff from 
agriculture, forestry, and small animal feeding operations to be 
considered as non-point sources of water pollution. It was not in 1972 
when the Clean Water Act was passed, nor is it currently, congressional 
intent or law for the EPA to regulate non-point sources of water 
pollution. However, this regulation seeks to change that. This 
regulation takes certain traditional non-point sources and moves them 
into the point source category.
    Mr. Chairman, I believe we can find ways to ensure that Congress, 
the EPA, the States, and our private property owners can continue to 
improve clean water throughout the nation. We should be promoting what 
works--voluntary best management practices, responsible care of our 
land, and each State's current ability to enforce non-point source 
pollution controls through the appropriate measures.
    Mr. Chairman, merely extending a point source permitting program 
over non-point source activities will only cause more problems with 
implementation and enforcement rather than getting at the problems of 
maintaining clean water.
    Mr. Chairman, my bill will merely keep the EPA from extending point 
source regulations over normal forestry non-point activities.
    I am committed to working with this committee, the Administration, 
and the Senate to find the right approach to assisting the States in 
their efforts to address diverse sources of pollution. I want to do so 
in a way that will enhance the work done in the States to date, and not 
simply overburden them with a Federal regulatory approach that does 
nothing to help achieve the objectives that we all have--clean water.
    Thank you, Mr. Chairman.
                                 ______
                                 
      STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM THE STATE 
                             OF WASHINGTON

    Mr. Chairman, I appreciate this opportunity to convey the strong 
concerns of many of my constituents in Washington regarding the 
Environmental Protection Agency's proposed regulations to revise the 
Total Maximum Daily Load (TMDL) program under Section 303(d) and 
proposed modifications to the National Pollutant Discharge Elimination 
System (NPDES) permit program under Section 402 of the Clean Water Act.
    EPA's proposed TMDL rules represent yet another example of a 
Federal agency having good intentions, but having little sensitivity to 
the potentially bad effects its actions may ultimately cause. The goal 
of identifying polluted waters across the Nation and making them 
cleaner is one we all share. No one here today disagrees with that 
idea. That is a particularly important objective in my own State of 
Washington, where citizens are now struggling to keep Pacific Northwest 
salmon from going extinct in streams, lakes, and rivers throughout the 
Puget Sound.
    My primary concern is that if these rules were enacted as written, 
EPA, despite its good intentions, would undermine sincere efforts by 
Washington property owners, tribes, States, and local governments to 
comply with the Endangered Species Act and would slow down local 
efforts to successfully restore endangered and threatened salmon runs. 
Specifically, these rules would interfere with the Washington Forests 
and Fish Agreement--a plan that took 2 years to negotiate, was agreed 
to by Federal, State, local, tribal entities and small forest 
landowners, had the full support of Governor Gary Locke, the Washington 
Department of Ecology and was approved with bipartisan support in the 
Washington State legislature. This plan was adopted to ensure that 
eight million acres of non-Federal lands would be in compliance with 
both the Endangered Species Act and Clean Water Act requirements.
    Unfortunately, the proposed TMDL changes could jeopardize the 
Forests and Fish Agreement by suggesting that EPA regulators be given 
authority to treat silviculture as a ``point source.'' This would 
reverse policies affecting the forestry industry that have been in 
place for 27 years. It would further shift regulation of forest 
management activities from the State level to the Federal level, and 
require Federal clean water permits for a wide variety of forest 
management practices that would already by adequately regulated under 
the Forests and Fish Agreement.
    I am also very concerned that individual property owners who have 
worked hard to negotiate smaller-scale habitat conservation plans and 
candidate conservation agreements with the U.S. Fish & Wildlife Service 
and the National Marine Fisheries Service would nevertheless be 
required to obtain a permit from EPA under the NPDES rule change. This 
would create an unduly burdensome process for small private property 
owners and small communities. Federal agencies should be working 
together to ensure that Endangered Species Act and Clean Water Act 
processes don't make it more difficult for local efforts to protect 
salmon.
    Finally, I share the concern of the Washington Department of 
Ecology and others that these proposed TMDL regulations would add more 
responsibilities than EPA is capable of managing. The Director of the 
Washington Department of Ecology correctly pointed out in his comments 
to the rules that the clear Congressional intent in implementing the 
Clean Water Act was to provide for a much more streamlined approval 
process. If enacted, these rules would delay many activities simply 
because EPA is not capable of managing the approval process.
    The Administration should ensure that the heads of the Federal 
agencies that propose these new rules and regulations should first talk 
with one another, and talk with the States before they move ahead with 
implementing them. Like me, the citizens of Washington believe that 
better coordination amongst the Federal agencies as well as better 
coordination between the Federal and State agencies would ensure that 
the goals we all share--cleaner water and preserving endangered 
salmon--are achieved in the most efficient and expeditious manner.
                                 ______
                                 
      STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE 
                               OF OREGON

    Mr. Chairman, I appreciate the opportunity to appear before the 
subcommittee today to discuss the Environmental Protection Agency's 
proposed rules regarding the Total Maximum Daily Load (TMDL) program 
under Section 303(d) of the Clean Water Act. These rules, proposed last 
August, would be a radical rewrite of the TMDL program, and would 
affect how States implement the entire Clean Water Act.
    I also appreciate your leadership on this issue, Mr. Chairman. I 
think that the Environmental Protection Agency (EPA) has exceeded its 
statutory charge in proposing these rules, and congressional oversight 
is therefore required. As you know, last session I led the fight to 
extend the comment period on these proposed rules. Initially, EPA was 
only going to provide a 60-day comment period for this complex 
rulemaking that seeks to regulate a number of industries and activities 
not previously regulated under the TMDL program.
    I authored an amendment, accepted by the managers of the VA/HUD and 
Independent Agencies Appropriations bill, that extended the comment 
period by 90 days.
    Given the 30,000 comments the agency received, I think that the 
additional time Congress mandated for the comment period was definitely 
warranted. It is my understanding that EPA heard from a wide range of 
interests that were critical of the proposed rules, including: other 
Federal agencies, State and local governments, manufacturing interests, 
landowners and others.
    In sum, these comments point out that EPA is proposing to use a 
sledge hammer when a fly swatter would do.
    I know that a broad range of stakeholders are testifying before the 
subcommittee today. Therefore, I want to focus my comments on the 
concerns raised by private forest landowners in my State, who are 
already required to operate using best management practices under the 
landmark Oregon Forest Practices Act.
    Under these proposed rules, a number of nursery and forestry 
practices would no longer be categorically excluded from the definition 
of ``point source.'' These activities include: nursery operations, site 
preparation, reforestation and subsequent cultural treatment thinning, 
prescribed burning, pest anti fire control, harvesting operations, 
surface drainage, or road construction and maintenance.
    Instead of being categorically excluded, selected sources could--on 
a case-by-case basis--be designated as point sources for regulation 
under the National Pollution Discharge Elimination System (NPDES) 
permit program for storm water discharges. This is a complete reversal 
from the treatment for the last 27 years of forestry practices as non-
point sources under the Clean Water Act. The implications of this 
reversal are staggering for the millions of private forest landowners 
in my State and across the nation.
    I believe that EPA has significantly underestimated both the costs 
to the landowner and the time that it would take to obtain permits 
under this proposal.
    The specter of a State or Federal permitting system for each 
management action needed on a stand of trees throughout its rotation is 
truly frightening. EPA reserves the right to take over any State's TMDL 
program, which would mean that landowners would then need to obtain a 
Federal permit, potentially subjecting those permits to consultations 
under the Endangered Species Act.
    Further, under the Act, landowners could be subject to fines of up 
to $27,500 a day, as well as to citizen lawsuits, for alleged permit 
violations.
    A number of State agencies have raised concerns about the high cost 
of implementing and administering this program. It is unlikely that 
sufficient State resources would exist to administer such a permit 
program in a timely manner. Currently, on the average, it takes several 
years from the time of making application for an NPDES permit before a 
landowner receives a permit.
    Adding forestry activities to the NPDES pipeline will only 
exacerbate this problem and reduce effective forest management, since 
many forestry activities are extremely time sensitive and weather 
dependent. For example, insect infestations, wildfires, and blowdowns 
are unpredictable occurrences that must be dealt with in a timely 
manner.
    We all share the goal of clean water, and our Nation has made great 
strides in cleaning up polluted waterways since the passage of the 
Clean Water Act.
    However, the EPA has failed to demonstrate that changing the 
treatment of everyday forestry activities to point sources of pollution 
is warranted. In fact, EPA has recognized forestry activities to be a 
consistently minor source of water quality impairment, as cited in 
EPA's 1996 National 503(b) Report.
    In my State of Oregon, there are about 28 million acres of 
forestland, representing 45 percent of Oregon's land base. Sixty 
percent of Oregon's forestland is publicly owned, while 40 percent is 
privately owned.
    Oregon's private forestland is regulated under the 1972 Oregon 
Forest Practices Act, which established a visionary new standard for 
forest management. Public forestland in Oregon is protected at a level 
at least equal to that provided by the Oregon Forest Practices Act. As 
a result, all of Oregon's forestlands are already required to provide 
protection to streams, lakes and wetlands. These regulations are 
unnecessary and will ultimately be detrimental to forest health.
    In closing, let me State that I have concerns about these proposed 
rules both substantively and procedurally. I have summarized my 
substantive concerns above. But I am also concerned that EPA has failed 
to fulfill a number of the requirements for promulgating a major rule 
such as this.
    I am not sure EPA has accurately assessed the costs of these 
proposed rules on State and local governments, as required under the 
Unfunded Mandates Act of 1995.
    Further, that Act requires the agency to consider reasonable 
alternatives and to select the least costly, most cost-effective or 
least burdensome of the alternatives, or explain why such alternatives 
were not chosen. I am not confident that any alternatives will be 
considered.
    I am not sure the Administration has adequately examined the cost 
of these rules on small businesses, as required by the Treasury and 
General Government Appropriations Act for fiscal year 2000.
    The arrogance with which EPA initially proposed only a 60-day 
comment period is exceeded only by the arrogance of claiming it will 
finalize these rules by the end of June. EPA's statutory authority to 
promulgate these rules is questionable at best, and too many issues 
have been raised by the comments to be addressed so quickly.
    I believe there is another agenda here at work. The issue isn't 
clean water, it is the Federal regulation of private lands, which has 
historically been the purview of State and local authorities.
    Every Member of Congress should be concerned about the proposed 
regulation of forestry under these rules, because if they are 
successful in regulating nursery and forestry activities, the 
regulation of agricultural practices is not far behind.
                               __________

  STATEMENT OF PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION 
   ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, 
                       GENERAL ACCOUNTING OFFICE

    Mr. Chairman and members of the subcommittee: I am pleased to be 
here to discuss the adequacy of the data that the Environmental 
Protection Agency (EPA) and the States have for making critical water 
quality decisions required by the Clean Water Act. The act has been 
credited with greatly improving the condition of the waters in the 
United States. This success comes largely from the control of pollutant 
discharges from industrial facilities and wastewater treatment plants 
also called ``point'' sources of pollution. Despite these strides, 
however, there are still many waters that do not meet water quality 
standards. Of particular concern in recent years are ``nonpoint'' 
sources of pollution--diffuse sources that include a variety of land-
based activities such as timber harvesting, agriculture, and urban 
development--which are widely regarded as contributing to the largest 
share of remaining water quality problems. Nonpoint sources must be 
addressed in order to achieve the nation's clean water goals.
    The ability to deal with these problems cost-effectively depends 
heavily on States' efforts to monitor their waters to identify where 
their most serious problems are and to develop strategies to address 
those problems. States submit a list (known as the ``303(d) list'') to 
EPA identifying waters that do not meet applicable water quality 
standards and develop total maximum daily loads (TMDLs) for waters on 
their lists. TMDLs are intended to help restore water quality by 
reducing the amount of pollution entering a body of water to a level 
that will enable it to meet standards. Comprehensive and reliable 
monitoring data have become particularly important in recent years as 
national attention has focused on the soundness of regulatory decisions 
required to deal with the nation's most heavily polluted waters. 
Attention to our remaining water quality problems has been amplified by 
numerous lawsuits calling for accelerated cleanup of these waters 
through the 303(d) and TMDL processes. The basis for many of the 
lawsuits is that EPA and the States have not implemented these 
requirements of the Clean Water Act. EPA proposed revisions to its 
regulations on the management of water quality in August 1999 to 
strengthen the TMDL program.
    At the request of the Chairman of the Subcommittee on Water 
Resources and Environment, House Committee on Transportation and 
Infrastructure, we recently completed an evaluation of the adequacy of 
the data available to States to carry out several key water quality 
management responsibilities. That evaluation also examined whether the 
information in EPA's National Water Quality Inventory is reliable and 
representative of water quality conditions nationwide. We issued our 
report to the subcommittee last week.\1\ Our testimony today discusses 
the findings from that report as they relate to (1) the adequacy of the 
data for identifying waters for States' 303(d) lists, (2) the adequacy 
of data for developing TMDLs for those waters, and (3) key factors that 
affect the States' abilities to develop TMDLs. During the course of our 
work, we conducted a survey of the officials responsible for these 
water quality management activities in the 50 States and the District 
of Columbia (hereafter, collectively referred to as States), and 
interviewed water quality officials in 4 States.
---------------------------------------------------------------------------
    \1\ Water Quality: Key and State Decisions Limited by Inconsistent 
and Incomplete Data (GAO/RCED-00-54, March 15, 2000)
---------------------------------------------------------------------------
    In summary, Mr. Chairman, we found the following:
     Only 6 States reported that they have a majority of the 
data needed to fully assess their waters, raising questions as to 
whether States' 303(d) lists accurately reflect the extent of pollution 
problems in the nation's waters. While the State officials we 
interviewed feel confident that they have identified most of their 
serious water quality problems, several acknowledged that they would 
find additional problems with more monitoring.
     States reported that they have much more of the data they 
need to develop TMDLs for pollution problems caused by point sources 
than by nonpoint sources. States can more readily identify and measure 
point sources of pollution because these sources generally discharge 
pollutants through distinct points, such as pipes. Conversely, nonpoint 
sources are difficult to identify and measure because of their diffuse 
nature. As a result, developing TMDLs for pollution problems caused by 
nonpoint sources often requires additional data collection and 
analysis. Only three States reported having a majority of the data they 
need to develop TMDLs for these types of problems.
     States reported that they have been developing TMDLs for 
waters polluted by point sources for many years and, therefore, have 
expertise in analyzing these types of pollution problems. In contrast, 
however, States told us that their ability to develop TMDLs for 
nonpoint sources is limited by a number of factors. States 
overwhelmingly cited shortages in funding and staff as the major 
limitation to carrying out their responsibilities, including developing 
TMDLs. In addition, States reported that they need additional 
analytical methods and technical assistance to develop TMDLs for the 
more complex, nonpoint sources of pollution.

                               BACKGROUND

    Monitoring water quality is a key activity for implementing the 
Clean Water Act. The act requires States to set standards for the 
levels of quality that are needed for bodies of water so that they 
support their intended uses.\2\ States compare monitoring data, or 
other information, with water quality standards to determine if their 
waters are of acceptable quality. Figure 1 shows these and other 
activities for managing water quality.
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    \2\ Under the Clean Water Act, States identify uses for their 
waters such as for public water supplies, recreation, and protection of 
fish and wildlife.

    States report to EPA on the condition of their waters via two 
primary mechanisms. First, States report every 2 years on the quality 
of their waters including information on the percentage of waters they 
assessed, the number of waters meeting standards, and the primary 
causes and sources of pollution in their waters. EPA compiles the 
States' reports, analyzes them, and presents this information in the 
National Water Quality Inventory, which is EPA's primary tool for 
communicating about water quality conditions to the public. Second, 
States identify waters for which existing pollution controls are not 
stringent enough to enable them to meet applicable standards and place 
these waters on their 303(d) lists.
    The Clean Water Act sets forth a procedure for States to follow in 
addressing waters that do not meet standards. Specifically, the act 
requires that States establish TMDLs for waters on their 303(d) lists. 
A TMDL refers to the maximum amount of a pollutant that a body of water 
can receive on a periodic basis and still support its intended uses. 
Generally, TMDLs are developed by (1) analyzing the pollutants and 
sources of those pollutants causing a water quality problem and (2) 
determining how much the pollutants need to be reduced in order to 
enable the body of water to meet standards.
  states do not have the data they need for the 303(d) listing process
    States' 303(d) lists may not accurately reflect the extent of 
pollution problems in the nation's waters because many waters have not 
been assessed. In our survey, only six States responded that they have 
a majority of the data needed to fully assess all their waters. This 
response is consistent with the relatively low percentage of waters 
that States reported assessing for the National Water Quality 
Inventory. In 1996, for example, States assessed 19 percent of the 
nation's rivers and streams and 40 percent of the lakes and reservoirs. 
(See fig. 2.) Despite not having assessed all their waters, the State 
officials we interviewed said they feel confident that they have 
identified most of their serious water quality problems. States tend to 
focus their monitoring on waters with suspected pollution problems in 
order to direct scarce resources to areas that could pose the greatest 
risk.

    However, studies that have more thoroughly monitored water quality 
conditions either through monitoring previously untested waters or 
conducting different types of monitoring tests have identified 
additional pollution problems. For example, a 1993 EPA-funded study of 
toxins in lakes showed widespread elevated levels of mercury in Maine 
lakes, despite Maine officials' assumption that these waters were 
likely meeting standards because they are in areas with little or no 
human activity. As a result of these findings, the State issued 
advisories against consuming fish from all the State's lakes. In 
addition, a study conducted by Ohio's environmental protection agency 
found that using additional types of monitoring tests identified a 
significant number of pollution problems in waters that had been shown 
by other monitoring efforts to be meeting standards. The State 
officials we interviewed acknowledged that they would likely find 
additional problems if more thorough monitoring were conducted.
    Data limitations also affect States' abilities to make decisions 
regarding which waters should be placed on their 303(d) lists. Most 
States reported that they do not have all the data they need to place 
waters that they have assessed on their 303(d) lists. State officials 
said that their inability to make a listing decision stems from the 
fact that some of their assessments are based on what is called 
``evaluated data.'' Evaluated data include site-specific monitoring 
data more than 5 years old and information that serves as an indicator 
to potential water quality conditions, such as anecdotal evidence or 
reports on wildlife or habitat conditions. EPA and State officials 
acknowledge that these data sources are less reliable than current, 
site-specific monitoring data. Some State officials told us that while 
they may use this information to make an assessment of water quality 
conditions for the National Water Quality Inventory report, they prefer 
not to use it for making decisions about whether to place these waters 
on their 303(d) lists because of the requirement to develop a TMDL for 
those waters. State officials said that they prefer to conduct 
additional monitoring in these waters to determine whether they are 
meeting standards.
    While State officials acknowledged that they may not have 
identified all waters that need TMDLs, they also told us that there are 
some waters on their 303(d) lists that do not need TMDLs. The reasons 
for this varied widely. For example, officials in one State said that 
they mistakenly assessed some waters against higher standards than 
necessary, which resulted in these waters being placed on their 303(d) 
list. In another State, officials told us that about half of the waters 
on their 303(d) list were listed on the basis of evaluated data. Upon 
additional monitoring of these waters, the State has found that many 
meet standards and, therefore, do not need TMDLs.

                 STATES LACK DATA FOR TMDL DEVELOPMENT

    Our survey showed that States are much better positioned to develop 
TMDLs for pollution caused by point sources than nonpoint sources.\3\ 
(See fig. 3.) States generally have better data and capabilities for 
analyzing point sources of pollution because much of the last 27 years 
of the Clean Water Act's implementation has focused on addressing this 
type of pollution. In fact, the State officials we spoke with said they 
have been following the TMDL process for point sources for many years 
as a way of achieving water quality standards and developing 
appropriate pollutant discharge limits. In addition, much of EPA's 
guidance on developing TMDLs, which dates from the 1980's, has focused 
on point sources of pollution. Responses to our survey indicate that 
most States have much of the data needed to address point source 
pollution. Specifically, 40 States responded that they have a majority 
of the data they need to identify point sources of pollution, and 29 
States reported having a majority of the data needed to develop TMDLs 
for these problems.
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    \3\ Current and proposed EPA regulations require that States 
develop TMDLs for waters polluted by non-point sources.

    In contrast, a vast majority of States reported that they do not 
have much of the data they need to address nonpoint sources of 
pollution. Addressing nonpoint source pollution is essential to meet 
the nation's clean water goals because there is wide agreement that 
most remaining water quality problems are caused, at least in part, by 
nonpoint sources. Unlike point sources, whose pollutant contributions 
can be directly measured as they come out of a pipe, nonpoint source 
pollution may come from many disparate sources. For example, rainwater 
may carry fertilizer, manure, pesticides, and soil with it as it runs 
off of farm fields into bodies of water. Measuring how much pollution 
comes from these various sources can be extremely difficult and 
frequently requires the use of analytical methods, such as mathematical 
models.
    Developing TMDLs for nonpoint source pollution often involves data 
collection and analysis beyond what is done by routine water quality 
monitoring. An EPA study of 14 TMDL development efforts--all but one of 
which included nonpoint sources of pollution--found that each entailed 
additional data collection. This additional data collection accounted 
for an average of about 40 percent of the total cost of developing the 
TMDL.\4\ Responses to our survey show that most States lack the data 
they need to address pollution caused primarily by nonpoint sources. 
For example, only three States reported that they have a majority of 
the data they need to identify nonpoint sources causing pollution, and 
29 States reported having much less than half or almost none of the 
data needed. In addition, only three States reported having a majority 
of the data needed to develop nonpoint source TMDLs. Officials in some 
States told us that because they lack the data needed for certain TMDL 
projects, they are focusing on TMDLs that are relatively easy to 
develop, rather than those that are of higher priority. These officials 
said this is due to the pressure they feel from EPA to show they are 
making progress on TMDL development.
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    \4\ See TMDL Development Cost Estimates: Case Studies of 14 TMDLs, 
USEPA (1996). One effort did not provide separate cost data on 
additional data collection conducted.
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    Several State officials told us that because most of the TMDLs they 
must develop are for pollution caused by nonpoint sources, they prefer 
to use methods that require less initial data collection and analysis 
before implementing pollution control strategies. Two-thirds of the 
State officials responded in our survey, for example, that using a 
phased TMDL approach--a process described in EPA's current guidance--is 
very helpful for addressing pollution problems.\5\ The State officials 
said that such a phased approach enables them to apply best management 
practices to nonpoint sources identified as contributing to a problem 
while, at the same time, gathering additional monitoring data to better 
understand the relative contributions of sources.\6\ Several officials 
said they see this as a way to address water quality problems sooner, 
rather than to study problems extensively before taking any remediation 
actions.
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    \5\ As described in EPA guidance, a phased approach involves 
developing a TMDL on the basis of available data so that pollution 
reduction strategies can begin while additional data collection and 
analyses are conducted.
    \6\ Nonpoint sources are largely addressed through the use of best 
management practices, the effectiveness of which varies with site-
specific conditions, such as soil type and climate. Best management 
practices are generally changes in the way in which individuals use 
land. Examples include (1) leaving strips of farmland next to waters 
uncultivated to minimize erosion and (2) using man-made ponds or basins 
to detain stormwater runoff from roads to minimize the velocity of 
water reaching nearby waters during storms and to allow sediment and 
other pollutants to settle.
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    While data collection is often required to develop a TMDL, 
additional data are also needed after a TMDL is established. Current 
EPA guidance and proposed TMDL regulations discuss the need for 
monitoring after pollutant controls or other activities are implemented 
to determine if the TMDL is working and the body of water is attaining 
water quality standards. This means that significant new monitoring 
efforts will be needed, particularly for TMDLs addressing nonpoint 
sources of pollution, because the effectiveness of controls to reduce 
such pollution can be affected by site-specific conditions.
    other factors limit states' abilities to address polluted waters
    In addition to the data gaps that States face in developing TMDLs, 
States also identified several factors that limit their ability to 
conduct monitoring and analyses to fully address the listing of 
polluted waters, TMDL development, and other key water quality 
management activities. Almost all States identified a need for 
additional funding and staff to carry out their duties. Most States 
also cited the need for additional analytical methods and technical 
assistance to analyze complex pollution problems and develop TMDLs.
Resource Shortages
    Forty-five States reported that the lack of resources was a key 
limitation to making more progress on improving water quality. In 
addition, several States pointed out that they are operating under 
State-imposed staffing level ceilings, and other States said they are 
limited in how many samples they can analyze because of shortages in 
lab funding. EPA officials told us that overall, less resources are 
being devoted to monitoring and assessment at the State level than ever 
before. EPA is conducting a study of funding shortfalls in States' 
water quality programs and plans to identify alternative approaches for 
addressing the anticipated gap. On the basis of a preliminary analysis 
of 10 State programs, EPA found that States have shortfalls in most 
areas of water quality management, including water quality monitoring 
and TMDL development. The agency plans to finalize its methodology for 
estimating these shortfalls in spring 2000.
Analytical Methods and Technical Assistance
    EPA has taken steps toward providing assistance in TMDL 
development, but the agency's current level of assistance falls short 
of States' needs. EPA's efforts have included issuing multiple guidance 
documents over the past 15 years on developing point source TMDLs, and, 
more recently, producing a watershed model and analysis tool to be used 
in developing TMDLs for more complex pollution problems, such as 
nonpoint source and combination point-nonpoint source pollution.\7\ EPA 
has also provided a compendium of models that are available for States 
to use in analyzing pollution problems.
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    \7\ Watershed models are often used to analyze non-point source 
pollution because they can take into account many of the factors that 
influence such pollution such as land use, climate, and geographic 
features.
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    Yet a majority of the States responded in our survey that they need 
additional technical tools and assistance to help them with TMDL 
development. States are particularly concerned about their ability to 
develop TMDLs for nonpoint sources because they have little experience 
in using the advanced methods required for addressing nonpoint source 
problems. In addition, officials told us that they need assistance from 
EPA personnel in selecting appropriate watershed models for specific 
problems and in model troubleshooting and refinement.
    Officials in two States told us that they previously had obtained 
such assistance from experts in EPA's modeling lab in Athens, Georgia. 
This assistance, however, is no longer available because of reductions 
in funding, according to an official in EPA's TMDL branch. Moreover, 
this official told us that there is no formal mechanism for providing 
assistance to States for developing TMDLs. He said that assistance is 
provided largely in an ad-hoc fashion by EPA staff in headquarters, 
regions, and labs.
    Some States suggested that EPA should develop sample approaches or 
templates that States could use to guide them through certain types of 
TMDLs, such as templates that indicate what type of data and analyses 
are needed for particular pollutants. In addition, several States 
pointed out the need for States to share information on TMDL projects 
in order to learn from the experiences of others, rather than 
``reinventing the wheel.''

        EPA ACTIVITIES UNDER WAY COULD ADDRESS SOME STATE NEEDS

    Several activities currently under way at EPA could help States in 
some of these areas. Perhaps most directly relevant to States' needs 
are EPA's efforts to provide guidance, or templates, for developing 
TMDLs for some of the more common pollutants causing waters to not meet 
standards--sediment, nutrients, and pathogens. The guidance is intended 
to provide States with an organizational framework for completing the 
technical and programmatic steps in the development of TMDLs for 
specific pollutants. EPA issued a guidance document for sediment in 
October 1999 and one for nutrients in November 1999. These documents 
appear to provide some of the information and specific guidance that 
States identified as needed, such as the suggestions for the kinds of 
data and analyses necessary to develop a TMDL. How useful these 
documents are will become clearer after they have been used in several 
TMDL development efforts.
    In addition, EPA is conducting two pilot studies to examine methods 
for taking airborne sources of pollution into account when developing 
TMDLs by looking at mercury contamination. The studies will examine 
techniques for determining (1) the amount of mercury reductions needed 
to meet water quality standards, (2) the relative contributions of 
mercury from various sources, and (3) the geographic extent of sources 
contributing mercury. A legal analysis of Federal and State programs to 
address airborne sources of mercury deposited in bodies of water will 
also be conducted. EPA plans to issue a ``lessons learned'' report on 
the findings of the pilots in spring 2000. EPA is also working on 
guidance to assist States in developing criteria for nutrients (i.e., 
measures for determining if waters containing nutrients are of an 
acceptable quality) that are appropriate to different geographic 
regions. The need for these criteria was highlighted in 1998 in the 
Administration's Clean Water Action Plan because assessments of the 
seriousness and extent of pollution problems caused by nutrients are 
often based on subjective criteria.
    While EPA has several activities under way in areas that States 
cited as problems, the agency does not have an overall strategy for 
identifying and addressing States' needs for developing TMDLs. EPA 
officials told us that EPA regions are in the process of assessing 
States' TMDL programs in order to identify areas in which assistance is 
needed and to develop regional strategies to support States' programs. 
Without an overall strategy, however, EPA cannot be certain that it is 
addressing these needs in the most cost-effective manner.
    Additionally, EPA is not addressing one of the key needs the States 
identified--technical assistance in using watershed models and other 
analytical methods. EPA officials responded that each State can obtain 
such assistance from contractors. However, a more coordinated approach 
could be more efficient, given the fact that many States will need to 
develop TMDLs for similar pollutants and will likely go through similar 
analytical processes. Such an approach may be a more cost-effective 
alternative for both EPA and the States as they address this 
challenging problem.
    This concludes our prepared statement, Mr. Chairman. We would be 
pleased to address any questions that you or other members of the 
subcommittee may have.
      STATEMENT OF CLAUDIA COPELAND, SPECIALIST IN RESOURCES AND 
    ENVIRONMENTAL POLICY RESOURCES, SCIENCE, AND INDUSTRY DIVISION, 
        CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
 EPA'S TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM: HIGHLIGHTS OF PROPOSED 
                   CHANGES AND IMPACTS ON AGRICULTURE

                                SUMMARY

    In August 1999 the Environmental Protection Agency (EPA) proposed 
regulations to clarify and strengthen the Total Maximum Daily Load 
(TMDL) program under section 303(d) of the Clean Water Act (CWA). 
Section 303(d) requires States to identify surface waters for which 
wastewater discharge limits are not stringent enough to achieve 
established water quality standards, even after application of required 
pollution controls. For each of these waterbodies, States are required 
to set a total maximum daily load of pollutants at a level that ensures 
that applicable water quality standards can be attained and maintained 
and to allocate further required pollutant reductions among sources. 
EPA is required to take these actions if a State fails to do so.
    The TMDL process consists of two elements: (1) identifying 
waterbodies where standards are not being attained and (2) establishing 
TMDLs. EPA's TMDL proposal addresses both elements. These changes 
directly affect States, territories, and Indian Tribes authorized to 
administer CWA programs. It is up to these entities to identify waters 
that do not meet the Act's goal of attaining and maintaining water 
quality standards and adopt policies and measures applicable to 
individual sources, in order to attain water quality standards. EPA 
believes that impacts on agriculture and forestry, if any, will occur 
through State implementation, not directly from these rules. As States 
implement the TMDL program, where agriculture sources are identified as 
responsible for water quality impairments, agriculture may be required 
to adopt control actions (for those in agriculture which are point 
sources) and/or management measures (for nonpoint sources) to help 
clean up waterways. Determinations of impairments and required actions 
will be site-specific and variable. EPA concurrently proposed related 
changes to permit and water quality standards program regulations to 
complement the revised TMDL rules. Two parts of the latter proposal 
could directly impact some agriculture and forestry sources. Interest 
groups representing agriculture and forestry criticize the possibility 
that many of their activities will become subject to CWA regulation and 
enforcement, as a result of implementation of the proposal. EPA, 
however, expects to use the authority in the proposed rule to affect 
agriculture and forestry only in limited circumstances and only where 
other means of working with a State to develop an effective TMDL 
program have failed.
    This report discusses the major changes in EPA's August 1999 
proposals, compared with existing regulatory program requirements. The 
key changes include: a new requirement for a more comprehensive list of 
impaired and threatened waterbodies; a new requirement that States, 
territories and authorized Indian tribes establish and submit schedules 
for establishing TMDLs; a new requirement that the listing 
methodologies be more specific, subject to public review, and submitted 
to EPA; clarification that TMDLs include 10 specific elements; a new 
requirement for an implementation plan as a necessary element of a 
TMDL; and new public participation requirements.

                              INTRODUCTION

    In August 1999 the Environmental Protection Agency (EPA) proposed 
regulations to clarify and strengthen the Total Maximum Daily Load 
(TMDL) program under section 303(d) of the Clean Water Act (CWA). 
Section 303(d) requires States to identify surface waters for which 
wastewater discharge limits are not stringent enough to achieve 
established water quality standards, even after application of required 
pollution controls. For each of these waterbodies, States are required 
to set a total maximum daily load of pollutants at a level that ensures 
that applicable water quality standards can be attained and maintained 
and to allocate further required pollutant reductions among sources. 
EPA is required to take these actions if a State fails to do so.\1\
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    \1\ For additional background, see CRS Report 97-831, ``Clean Water 
Act and Total Maximum Daily Loads (TMDLs) of Pollutants.''
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    The TMDL process consists of two elements: (1) identifying 
waterbodies where standards are not being attained and (2) establishing 
TMDLs. EPA's TMDL proposal addresses both elements. These changes 
directly affect States, territories, and Indian Tribes authorized to 
administer CWA. programs. EPA believes that impacts on agriculture and 
forestry, if any, will occur through State implementation, not directly 
from these rules. EPA concurrently proposed related changes to permit 
and water quality standards program regulations to complement the 
revised TMDL rules. Two parts of the latter proposal could directly 
impact some agriculture and forestry sources.
    This report discusses the major changes in EPA's August 1999 
proposals, compared with existing regulatory program requirements. The 
discussion of regulatory modifications is necessarily based on EPA's 
August 1999 proposals, but it should be recognized that final 
regulations, which EPA hopes to publish later in 2000, could be changed 
based on comments received during the public comment period (which 
closed January 20, 2000).
                           tmdl proposals\2\
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    \2\ U.S. Environmental Protection Agency. ``Proposed Revisions to 
the Water Quality Planning and Management Regulations.'' 64 Federal 
Register No. 162, Aug. 23, 1999: pp. 46011-46055.
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    The TMDL process consists broadly of two elements: (1) 
identification or listing of waterbodies where water quality standards 
are not being attained and maintained, followed by (2) establishment of 
TMDLs. EPA's proposals address both of these elements. The key changes 
include: a new requirement for a more comprehensive list of impaired 
and threatened waterbodies; a new requirement that States, territories 
and authorized Indian tribes establish and submit schedules for 
establishing TMDLs; a new requirement that the listing methodologies be 
more specific, subject to public review, and submitted to EPA; 
clarification that TMDLs include 10 specific elements; a new 
requirement for an implementation plan as a necessary element of a 
TMDL; and new public participation requirements.
    The proposed changes to the TMDL program will directly impact 
States, territories, and Indian Tribes which are authorized to 
administer the Clean Water Act. It is up to these entities to identify 
waters that do not meet the Act's goal of attaining and maintaining 
water quality standards. As States implement the TMDL program, where 
agriculture sources are identified as responsible for water quality 
impairments, agriculture may be required to adopt control actions (for 
those in agriculture which are point sources) and/or management 
measures (for nonpoint sources) to help clean up waterways. 
Determinations of impairments and required actions will be site-
specific and variable.\3\
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    \3\ Because EPA believes that the proposed TMDL rule does not 
directly apply to any discharger, including small entities, and since 
impacts on non-government entities are indirect and highly speculative, 
the Agency did not prepare an initial regulatory flexibility analysis 
under the Regulatory Flexibility Act. Impacts on the private sector 
would flow from requirements already established by section 303(d) and 
the States' water quality standards, not from these proposals, 
according to EPA. Id. pp. 46041-46042.
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    Definition of TMDL.--Under current regulations, a TMDL is defined 
as the sum of wasteload allocations (for point sources) and load 
allocations (for nonpoint sources) which do not violate the loading 
capacity of a waterbody, i.e., do not violate water quality standards.
    EPA proposes to define a TMDL as a written analysis of an impaired 
waterbody established to ensure that water quality standards will be 
attained and maintained throughout the waterbody in the event of 
reasonably foreseeable increases in pollutant loads. The definition 
also States the 10 minimum elements of a TMDL necessary for EPA 
approval (see below). Added definitions in the proposal include a 
definition of ``impaired waterbody:'' ``a waterbody that does not 
attain water quality standards.''
    Listing process--Data for listing of impaired waterbodies.--Current 
law and regulations require States\4\ to assemble and evaluate all 
existing and readily available data and information. Regulations also 
require a description of the methodology used to develop the 303(d) 
list,\5\ data and information used, the rationale for any decision to 
not use any existing and readily available data, and any other 
information requested by EPA.
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    \4\ The term ``State'' is used here to mean States, territories, 
and Indian Tribes that have been authorized to establish lists of 
impaired waters and TMDLs pursuant to section 303(d). Currently, 
however, no Tribes have sought this authority, and part of EPA's 
proposal is a clarification that Tribes may apply to EPA for such 
authority.
    \5\ The term ``list'' is used here to refer to the list of impaired 
or threatened waterbodies that States are required to submit to EPA 
pursuant to CWA sec. 303(d).
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    EPA's proposal retains these general requirements but identifies 
sources of data and information specifically (e.g., CWA sec.305(b) 
water quality assessment reports, CWA sec. 319 nonpoint source 
assessments, Safe Drinking Water Act source water assessments). EPA 
also proposes to require that States include a description of the 
methodology or factors used to assign priority rankings for waterbodies 
in the list and to submit the listing methodology for EPA review 8 
months prior to submission of the 303(d) list. The proposal deletes the 
existing requirement to identify the rationale for not using particular 
data.
    Listing process--Scope of impaired waters list.--The law requires 
identification of waterbodies for which effluent limitations 
(technology-based pollution controls or more stringent for point 
sources) are not stringent enough to attain water quality standards. 
Current EPA regulations require identification of waterbodies in need 
of TMDLs, wasteload allocation reductions (from point sources), and 
load allocation reductions (from nonpoint sources) in order to attain 
standards. Existing rules also require identification of pollutants 
causing or expected to cause water quality standards violations. The 
statute uses both the broad term ``pollution'' and narrower term 
``pollutant'' in section 303(d)\6\ EPA guidance has been unclear, hence 
State implementation has been inconsistent, on whether lists should 
cover impairments due to pollution or pollutants.
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    \6\ Under the Act, ``pollution'' is defined as ``the man made or 
man-induced alteration of the chemical, physical, biological, or 
radiological integrity of water.'' The statutory definition of 
``pollutant'' is narrower and means ``dredged spoil, solid waste, 
incinerator residue, sewage, garbage, sewage sludge, munitions, 
chemical wastes, biological materials, radioactive materials, heat, 
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, 
municipal and agricultural waste discharged into water.'' (CWA sec. 
502)
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    EPA's proposal would clarify that States must list waterbodies 
impaired or threatened by point sources only, nonpoint sources only, or 
a combination of point and nonpoint sources. States must list 
waterbodies whether the cause of impairment or threat is individual 
pollutants, multiple pollutants, or pollution from any source. Under 
the proposed rule, ``threatened'' means a waterbody that currently 
meets water quality standards, but adverse declining trends indicate 
that standards will not be met by the next listing cycle.
    Listing process--Components of a list.--Existing regulations 
require that the 303(d) list consist of water quality-limited segments 
still requiring TMDLs, but the rules recognize that certain impaired or 
threatened waterbodies do not require TMDLs and therefore those 
waterbodies need not be listed (e.g., those already attaining or 
expected to attain water quality standards with application of required 
pollution controls). No specific format for the list is currently 
required.
    EPA proposes to require States to list all impaired or threatened 
waterbodies whether or not required pollution controls will attain 
water quality standards. The list would be required to have a specific 
format, identifying waterbodies in four categories. A TMDL would be 
required only for waterbodies on Part 1 of a State's list.
     Part 1. Waterbodies impaired or threatened by one or more 
pollutants or unknown cause.
     Part 2. Waterbodies impaired or threatened by pollution 
but not impaired by one or more pollutants.
     Part 3. Waterbodies for which EPA has approved or 
established a TMDL and water quality standards have not yet been 
attained.
     Part 4. Waterbodies that are impaired, for which 
implementation of technology-based controls is expected to result in 
attainment of water quality standards by the next listing cycle.
    Existing regulatory requirements do not address when States can 
remove listed waters, but 1997 EPA guidance does, saying waterbodies 
can be removed if they are expected to attain water quality standards 
in the next 2 years, or if the original basis for listing was wrong. 
EPA now proposes that waters remain listed until water quality 
standards are attained. A waterbody could be removed only upon 
attainment or based on information that the original listing was wrong.
    Listing process--Priorities and TMDL schedule.--Current law and 
regulations require that States assign a priority ranking to each 
listed waterbody, based on the severity of pollution and uses of the 
waterbody, including identification of pollutants and identification of 
waterbodies targeted for TMDL development in the next 2 years (i.e., 
before the next listing cycle). The law and regulations contain no 
requirement for submitting a schedule for developing TMDLs for all 
listed waterbodies, but 1997 EPA policy guidance directed States to 
establish TMDLs 8-13 years after listing.
    EPA's proposal affirms the requirement for priority ranking. It 
requires States to assign ``high,'' ``medium,'' or ``low'' priority for 
all Part I listed waters. EPA suggests that high priority be assigned 
to waters used for public drinking water supply where there is 
violation of a drinking water standard or waters in which a threatened 
or endangered species is present. The Agency identifies factors States 
may consider to define medium and low priority (such as the value of 
particular waterbodies or the recreational, economic and aesthetic 
importance of particular waterbodies) but does not mandate specific 
priorities. The proposal eliminates the existing 2-year targeting 
requirement in lieu of a requirement that States submit a comprehensive 
schedule for establishing TMDLs for all Part I listed waters ``at a 
reasonable pace'' but not later CRS-5 than 15 years. EPA recommends but 
does not mandate that States establish TMDLs for high-priority waters 
within 5 years.
    Listing process--Submission of list to EPA.--Current law and 
regulations require submission of lists for EPA review and approval; if 
EPA disapproves the list, EPA is required to prepare the list.
    EPA proposes no change to these basic requirements but proposes to 
add regulatory language that EPA may establish the 303(d) list if asked 
to do so by a State or if the Agency determines that a State will not 
do so consistent with the required schedule for submission.
    Listing process--Listing cycle.--Existing regulations require 
States to submit 303(d) lists on April 1 of even-numbered years. EPA 
proposes to require submission of a State's listing methodology for 
Agency review (EPA may comment on but does not formally approve or 
disapprove methodologies and proposes no changes here) on January 31 
and 303(d) lists on October 1 of listing years. In the proposal, EPA 
retains the current 2-year listing interval, but seeks comments on 
other options, such as 4-year or 5-year intervals.
    TMDL--Minimum elements of a TMDL.--Current law and regulations 
require that TMDLs be established at levels necessary to meet water 
quality standards with seasonal variation and a margin of safety. EPA 
proposes to require that 10 minimum elements be included in a TMDL.
     Waterbody name and geographic location.
     Identification of the allowable pollutant load for the 
waterbody.
     Identification of the amount or degree by which the 
current pollutant load deviates from the allowable pollutant load.
     Identification of the source categories, subcategories, or 
individual sources for which the wasteload allocations and load 
allocations are being established.
     Waste load allocations for pollutants from point sources.
     Load allocations for pollutants from nonpoint sources, 
including atmospheric deposition and natural background.
     Margin of safety.
     Seasonal variations.
     Allowance for reasonably foreseeable future loadings.
     Implementation Plan with eight minimum elements listed 
below.
    TMDL--Implementation plan.--Currently there is no requirement that 
States develop a TMDL implementation plan. EPA now proposes to require 
that States develop a plan consisting of eight minimum elements.
     For point sources, a list of discharge permits and a 
schedule for revising the permits to be consistent with the TMDL is 
required. For nonpoint sources, a description of best management 
practices or other management measures is required.
     Timeline.
     Reasonable assurance that the implementation activities 
will occur. For nonpoint sources, reasonable assurance means that 
nonpoint source controls are specific to the pollutant of concern, 
implemented according to an expeditious schedule and supported by 
reliable delivery mechanisms and adequate funding.
     Description of the legal authorities under which 
implementation will occur.
     An estimate of the time required to attain water quality 
standards.
     A monitoring or modeling plan to determine effectiveness 
of the actions.
     Milestones for attaining water quality standards.
     A description of when TMDLs must be revised.
    A TMDL implementation plan, like other elements of a TMDL, would be 
subject to EPA approval and disapproval.
    TMDL--EPA authority.--The law and regulations require submission of 
TMDLs for EPA review and approval; if EPA disapproves a TMDL, EPA is 
required to establish the TMDL. EPA proposes to retain the existing 
basic review and approval process but proposes that EPA may establish a 
TMDL if asked to so by a State, if the Agency determines that the State 
will not do so consistent with its schedule, or if EPA determines it 
should do so for interstate or boundary waterbodies.
    TMDL--Transition.--EPA's proposal includes provisions to address 
the transition period between the existing and new regulatory program. 
For TMDLs under development now (by States or EPA) and for 12 months 
after issuance of final regulations, EPA proposes use of either the old 
TMDL rules or new rules, and if the TMDL is approvable according to the 
applicable rules, EPA will approve.
    For TMDL development underway as a result of settlement agreements 
and consent decrees to resolve litigation, EPA requests public comments 
on two options: (1) to phase in some of the new requirements, 
especially for decrees with short timeframes, to accommodate added 
workloads, or (2) on case-by-case basis, EPA may ask courts to modify 
the current schedule.
    General--Public participation.--Currentlythere are no specific 
requirements for public participation, except that regulations do 
require that calculations to establish TMDLs shall be subject to public 
review, as defined by a State, and EPA must seek public comment when it 
disapproves and establishes a list or TMDL.
    EPA proposes to require States to provide the public with at least 
30 days to review and comment on all aspects of 303(d) lists, schedule 
of TMDLs, and TMDLs, and to provide EPA with a written summary of 
public comments.
    General--Endangered species considerations.--Currently the TMDL 
program includes no specific requirements concerning endangered species 
concerns. However, EPA proposes to require that TMDLs include a 
description of how endangered or threatened species were considered.
    EPA also encourages States to establish processes with Fish and 
Wildlife Service, National Marine Fisheries Service for early 
identification and resolution of endangered species concerns. Agencies 
will be given the opportunity to comment, along with the public, on 
lists and priority rankings. States will be required to consider 
resource agencies' comments.
    General--Public petitions to EPA.--There is no provision on this 
topic in existing program requirements. However, EPA proposes to codify 
a specific petition process, available under the Administrative 
Procedure Act sec. 555(b), for citizens to petition EPA directly to 
perform 303(d) duties imposed on States. Under the APA, this petition 
process has been available but has not been used by citizens who, 
instead, have brought legal actions in court.
             water quality standards and npdes regulations
    In a concurrent proposal in August 1999, EPA proposed related 
changes to existing National Pollutant Discharge Elimination System 
(NPDES) and water quality standards program regulations.\7\ In it, EPA 
proposed several key changes affecting discharges to impaired waters, 
which are intended to complement the revised TMDL rules. Two provisions 
of the proposal could directly impact some agriculture and silviculture 
sources, although no estimate of the numbers of affected sources is 
available or possible at this time. Two others are likely to have 
minimal effect on agriculture and silviculture sources.
---------------------------------------------------------------------------
    \7\ U.S. Environmental Protection Agency. ``Revisions to the 
National Pollutant Discharge Elimination System Program and Federal 
Antidegradation Policy in Support of Revisions to the Water Quality 
Planning and Management Regulation.'' 64 Federal Register No. 162, Aug. 
23, 1999: pp. 46057-46089.
---------------------------------------------------------------------------
    Designation of additional sources of pollutants as subject to the 
NPDES program-animal production facilities.--CWA section 402 prohibits 
anyone from discharging ``pollutants'' through a ``point source'' into 
a ``water of the United States'' unless they have an NPDES permit. The 
permit contains limits on what can be discharged, monitoring and 
reporting requirements, and other provisions to ensure that the 
discharge does not harm water quality or human health. In essence, the 
permit translates general requirements of the Clean Water Act into 
specific provisions tailored to the operations of each person 
discharging pollutants. Permits are issued for 5-year terms and 
thereafter must be renewed.
    Point sources are generally industrial and municipal facilities 
that discharge from discrete, identifiable outlets such as pipes or 
ditches. Most agriculture and silviculture activities are considered to 
be nonpoint sources, since they do not discharge from pipes or outlets, 
and thus are not subject to NPDES requirements. Under CWA section 510, 
States may impose more stringent requirements than those in Federal law 
or regulations, including designating nonregulated sources for NPDES 
program requirements.
    Since 1973, existing regulations have allowed permitting 
authorities (authorized States and/or EPA) to designate previously non-
designated sources to be subject to NPDES program requirements, where 
necessary to attain water quality standards. Animal production 
facilities (terrestrial animal feeding operations or aquatic animal 
production facilities) may be designated for inclusion in the NPDES 
program, where it has been determined that the facility is a 
significant contributor of pollutants to U.S. waters. In the case of 
States that have been delegated the authority to issue NPDES 
permits,\8\ currently only the State permitting authority may make such 
a designation. EPA may do so in the States where it is responsible for 
NPDES permitting.
---------------------------------------------------------------------------
    \8\ Currently, 43 States and one territory are authorized to issue 
NPDES permits. In this memo, the terms ``authorized State'' and 
``delegated State'' refer to these 44 jurisdictions . EPA is the 
permitting authority in the remaining States (Alaska, Arizona, District 
of Columbia, Idaho, Maine, Massachusetts, New Hampshire, and New 
Mexico) and five territories.
---------------------------------------------------------------------------
    EPA proposes to modify regulations to allow the Agency to designate 
animal feeding operations and aquatic animal production facilities in 
authorized NPDES States as point sources on a case-by-case basis. 
Issuance of permits would still be the responsibility of the 
appropriate permitting authority (i.e., EPA would not issue permits to 
designated sources in NPDES-delegated States).
    This proposal would apply to animal feeding operations (AFOs) 
currently not designated as concentrated animal feeding operations 
(CAFOs), since CAFOs already are subject to NPDES requirements.\9\ It 
also would apply to aquatic animal production facilities, e.g. 
hatcheries or fish farms, which confine aquatic stock in a manmade pond 
or tank system (but not aquaculture facilities which confine aquatic 
stock in waters of the United States).
---------------------------------------------------------------------------
    \9\ In March 1999, EPA and USDA announced a Unified Animal Feeding 
Operation Strategy to achieve improved animal waste management 
nationwide. One element of the strategy is revision of existing CWA 
regulations that govern CAFOs. These revisions are expected to expand 
the regulatory coverage of AFOs which are defined as CAFOs and thus are 
subject to NPDES permitting and enforcement. The AFO strategy is 
separate from EPA's proposals to revise the TMDL program. For 
additional background, see CRS Report 98-451, ``Animal Waste Management 
and the Environment: Background for Current Issues.''
---------------------------------------------------------------------------
    EPA expects to use this authority only in limited circumstances and 
only where other means of working with a State have failed. EPA could 
do so where the Agency has disapproved a State's TMDL (i.e., if EPA 
finds that the TMDL implementation plan lacks reasonable assurance that 
facilities will achieve and maintain pollutant load allocations); EPA 
has then established a TMDL in the authorized State; finds that these 
operations are significant contributors of pollutants to the impaired 
waterbody; and finds that designation as a point source is necessary to 
provide reasonable assurance that pollutant load allocations in the 
TMDL will be achieved.
    Designation of additional sources of pollutants as subject to the 
NPDES program--silviculture.--Certain silviculture activities are 
currently designated by regulation as point sources subject to NPDES 
requirements: discharges from rock crushing, gravel washing, log 
sorting, and log storage facilities. EPA proposes no changes to these 
requirements.
    Other silviculture activities are excluded by regulation from NPDES 
requirements because they are considered to be nonpoint sources: runoff 
from nursery operations, site preparation, reforestation, thinning, 
prescribed burning, pest and fire control, harvesting operations, 
surface drainage, and forestry road construction and maintenance.
    EPA proposes to remove the categorical exemption from silviculture 
activities which are now exempt from NPDES requirements. Under this 
proposal, on a case-by-case basis, sources could be designated for 
NPDES regulation by a State or EPA based on a determination that the 
source contributes to a violation of water quality standards or is a 
significant contributor of pollutants to waters of the United States. 
Designation would be discretionary, not automatic.
    Unless a State acts on its own to designate a silviculture activity 
as a point source, such sources would only be subject to NPDES 
requirements (1) upon designation by EPA and (2) if the source 
discharges to a waterbody for which EPA establishes a TMDL. EPA could 
make a designation in any State (NPDES-authorized State or not) but 
would do so only when EPA prepares the TMDL. According to the proposal, 
EPA expects to use this authority only in limited circumstances and 
only where other means of working with a State have failed. EPA 
estimates that this will happen ``extremely rarely'' and ``as a last 
resort,'' because the Agency assumes that States will make every effort 
to develop effective TMDLs and employ their existing programs and legal 
authority to ensure compliance. Again because under CWA section 510 
States may impose more stringent requirements than those in Federal law 
and regulations, NPDES-authorized States may designate silviculture 
point sources outside of the TMDL context.
    Pollutant discharge offsets.--EPA proposes to require all large new 
discharges and existing discharges undergoing significant expansion 
that are proposing to discharge pollutant(s) of concern to an impaired 
waterbody to offset the new or increased discharge by reducing loads of 
the same pollutant from existing sources discharging into the same 
waterbody. Neither the CWA nor its regulations currently provide for 
such pollutant offsets.
    The new requirements would apply to new and expanding dischargers 
which are not defined as a ``small entity'' under the Regulatory 
Flexibility Act (4 USC 601(6)). Significant expansion means a 20 
percent or more increase in discharges above current permit limits. The 
new offset requirement would apply to discharges to impaired waters for 
which there is not yet a TMDL either established or approved by EPA. 
Once a TMDL is established or approved by EPA, measures to implement 
the TMDL would be incorporated in NPDES permits and would supersede 
offset requirements. The required offset would generally be 1.5: 1, but 
could be modified so long as the general purpose is observed: to ensure 
reasonable further progress toward attaining water quality standards 
(i.e., better than 1:1).
    Offsets could be obtained from point sources or nonpoint sources 
discharging into the same waterbody. If from a point source, that 
discharger's permit would contain any necessary monitoring and 
reporting requirements for purposes of accountability. If obtained from 
nonpoint sources, these requirements would be included in the new or 
expanding discharger's permit. EPA states that the basis for this 
proposal is not specifically contained in the CWA, but cites Clean Air 
Act section 173 (offset requirements for air pollution sources) as a 
statute with ``similar statutory goals and similar circumstances,'' 
therefore a similar requirement in the CWA is reasonable, in EPA's 
view.
    It is likely that this proposed change would affect few agriculture 
sources and,if so, would be limited to silviculture sources subject to 
NPDES permits, assuming that such permits allow for pollutant 
discharges and do not require zero discharge. Existing agriculture 
sources subject to the NPDES program (CAFOs) are prohibited from 
discharging wastewater into navigable waters, except those caused by 
the worst 24-hour storm that would occur in a 25-year period. Because 
of this prohibition in EPA regulations, it is unlikely that an existing 
or new CAFO could seek a permit allowing discharges. Thus, CAFOs are 
unlikely to be in the position to need to find offsets. However, point 
source dischargers might seek offsets for their operations from 
agricultural and other nonpoint sources.
    EPA authority to reissue State-issued expired and administratively 
continued permits.--Under CWA section 402, EPA may review, and has 90 
days to object to, State-issued NPDES permits that fail to meet 
guidelines and requirements of the Act. State law often provides that, 
if a source makes timely reapplication before the 5-year time when its 
permit expires, but the State is unable to act, the existing permit 
terms remain in effect until the State makes a final decision. Called 
administrative continuance, this protects permittees who have acted on 
a timely basis. As a matter of resources, States (and EPA) often are 
unable to reissue permits on a timely basis: an estimated 35 percent of 
the 350,000 NPDES permits nationwide are currently backlogged for 
reissuance. Currently there is no express authority in law or 
regulations for EPA to object to and veto a permit that is expired or 
administratively continued.
    EPA believes that administrative continuance of expired permits may 
allow for inappropriate delay in implementing pollutant controls, 
including those in TMDLs for impaired waterbodies. EPA now proposes to 
treat expired permits as equivalent to a State submission of a permit 
that the State proposes to re-issue, thus allowing the Agency to 
comment on, object to, or recommend changes. Under the proposal, if the 
State fails to respond, EPA can veto the permit and issue a permit in 
lieu. EPA states that it would use this discretionary authority only in 
limited circumstances: (1) if the discharge is subject to a TMDL 
established or approved by EPA and the expired permit does not reflect 
the TMDL, or (2) if the permit authorizes discharge of pollutant(s) of 
concern to an impaired waterbody for which there is no TMDL and other 
means of working with the State have failed.
    Like the discharge offset proposal, this revision likely would 
affect few agriculture sources. Again, CAFO permits essentially 
prohibit discharge of wastewater into navigable waters, so existing 
CAFO permits presumably already require pollutant controls. EPA thus 
might determine that an administratively continued CAFO permit provides 
adequate controls to protect water quality. However, EPA might use this 
procedure to address practices not covered in a CAFO's existing permit, 
such as discharges that occur from wastewater or solid manure mixtures 
which are applied to soil (EPA's current CAFO regulations do not 
specifically address land application; if regulated at all, these types 
of discharge are subject to varied State and local laws). Under the 
limited circumstances that EPA foresees for using this authority, some 
silviculture sources with NPDES permits (see page 8) could be affected 
by this proposed revision, but the number of potentially affected 
sources is unknown.
                                 ______
                                 
STATEMENT OF ROBERT J. WITTMAN, ON BEHALF OF THE VIRGINIA AND MARYLAND 
  ASSOCIATIONS OF MUNICIPAL WASTEWATER AGENCIES AND THE RAPPAHANNOCK 
                         RIVER BASIN COMMISSION

    Mr. Chairman and members of the subcommittee, I am Robert Wittman 
and I am pleased to testify today on the U.S. Environmental Protection 
Agency's proposed changes to the National TMDL program. My testimony is 
offered on behalf of the Virginia and Maryland Associations of 
Municipal Wastewater Agencies, and the Rappahannock River Basin 
Commission--on which I serve as Vice-Chairman.
    In addition to my statement, Mr. Chairman, I ask that you accept 
into the hearing record a brief set of written comments from VAMWA and 
MAMWA, on Chesapeake Bay Program issues raised in the proposed TMDL 
rules. These written comments provide a detailed discussion, with 
specific recommendations, on several Chesapeake Bay Program issues that 
I will cover only generally this morning.
    I should also mention that I serve on the Westmoreland County Board 
of Supervisors and as Chairman of the Montross, Virginia Water and 
Sewer Authority. Finally, I work for the Virginia Department of Health 
in the State's Shellfish Sanitation program. Thus, I work daily to 
address water quality issues at the local and regional levels. As with 
many of your constituents, EPA's proposed changes to the national TMDL 
program will affect me in each of the capacities in which I serve the 
public.
    VAMWA and MAMWA comprise almost 60 local governments that own and 
operate public wastewater treatment facilities in Virginia, Maryland, 
and the District of Columbia. Their members are major stakeholders in 
the Chesapeake Bay Program--which stands as a highly successful 
alternative to the traditional Clean Water Act command-and-control 
approach.
    The Chesapeake Bay Program is unique in many ways, not the least of 
which is the inclusive, cooperative relationship that exists between 
its many partners, including the Bay Program signatories (the 
Commonwealths of Virginia and Pennsylvania, the State of Maryland, the 
District of Columbia, the Chesapeake Bay Commission, and U.S. EPA), 
environmental advocacy groups, local governments, agriculture, 
industry, and others with a stake in the future of the Chesapeake Bay. 
The essence of a partnership such as the Bay program, and the element 
that makes it work, is its reliance principally on agreement, rather 
than mandate, to achieve its goals.
    That said, the Bay Program shares several key similarities with the 
TMDL program. For example, each Bay Signatory jurisdiction is 
implementing a tributary strategy process geared toward identifying and 
achieving stakeholder-developed restoration goals. Toward that end, the 
tributary strategies account for all loading sources and are blueprints 
for achieving and maintaining desired pollutant reductions from a wide 
array of point and non-point sources. However, while the Bay Program 
will achieve the same endpoints as would a properly implemented TMDL 
program, it will do so without resort to a Federal mandate. That means 
greater flexibility to develop and implement the most cost-effective 
controls--at a much faster pace--than would be possible under the TMDL 
program as we know it.
    The Rappahannock River Basin Commission is a forum in which local 
governments, State legislators and citizens can work cooperatively to 
address issues affecting the Basin's water quality and quantity. The 
membership consists of one member of each County and City governing 
body within the Basin, and all State Delegates or Senators whose 
district incorporates any part of the Basin, and one member from each 
Soil and Water Conservation District in the Basin. Our mission is to 
provide guidance and foster cooperation in the stewardship and 
enhancement of the water quality and natural resources of the 
Rappahannock River Basin.
    EPA's proposed TMDL rules raise many significant issues. However, 
there is one overriding opportunity--and challenge--before us all. 
EPA's response to this issue may well affect the continuing viability 
of efforts like the Bay Program and the River Basin Commission.
    As we seek to maintain and accelerate the water quality 
improvements that we have achieved since the Clean Water Act was passed 
almost 30 years ago, our challenges are increasingly complex and 
difficult. While the command and control point source programs under 
the CWA have been effective--not necessarily cost-effective, mind you, 
but effective nonetheless--in addressing point sources of pollution, a 
substantial majority of the remaining impairments are attributable to 
nonpoint sources or a combination of point and nonpoint sources.
    The societal investments necessary to address these water quality 
impairments will dwarf our investments over the last 30 years. 
Accordingly, one thing is certain: implementation of CWA programs by 
EPA and its State partners, must evolve toward a performance-based 
system rather than continuing the long-standing command-and-control 
approach. A performance-based approach will stimulate innovation and 
stakeholder-initiated water quality solutions that will accelerate the 
protection and restoration of water quality nationwide. This is exactly 
what we have been doing through the Bay Program for more than a decade.
    However, in order to move toward a performance-based system, EPA's 
TMDL rules must accept and encourage non-traditional, stakeholder-
initiated efforts such as efforts under the Chesapeake Bay Program and 
those of the Rappahannock River Basin Commission. These innovative, 
stakeholder-led programs are the CWA's present and future success 
stories. These are the only programs that can bring together the 
resources and the political will that it will take to address and 
eliminate the difficult water quality challenges that lie ahead.
    Fortunately, examples like our highly successful and nonregulatory 
Chesapeake Bay Program and the efforts of the Rappahannock River Basin 
Commission exist in every State. However, their ongoing viability is 
threatened by EPA's proposed TMDL rules.
    While the existing TMDL rules acknowledge and afford some stature 
to what it terms ``alternate pollution control programs,'' EPA's 
proposed rules inexplicably would eliminate this provision. Doing so 
will effectively deny recognition of non-command and control approaches 
to addressing water quality impairments. In our judgment, this is the 
single most important--and counterproductive--change that EPA proposes.
    Rather than running the TMDL program out of Washington, EPA should 
use the opportunity of updating the TMDL program to expressly empower 
State and local governments as well as other stakeholders nationwide 
engaged in water quality restoration efforts. It has been my experience 
in Virginia, that community-based, cooperative programs can be highly 
successful in achieving significant water quality improvements.
    I hope every member of this subcommittee agrees that EPA's final 
TMDL rule should clearly accommodate and encourage the development of 
non-traditional water quality initiatives. These initiatives are 
vitally important to your constituents as they seek to address water 
quality impairments in their watersheds. These programs augment efforts 
by EPA and the States and will surely accelerate water quality 
protection and restoration nationwide. EPA's proposed rule should (1) 
recognize the vital role that alternative programs, like the CBP, play 
today in our water quality restoration efforts, (2) promote an even 
greater role for existing and similar initiatives going forward, and 
(3) ensure that the States will have the flexibility to integrate 
effective, non-traditional approaches into the TMDL program.
    In response to concerns about the impact of the TMDL program on the 
CBP, last summer, the signatories to the Bay Agreement agreed to embark 
on the unprecedented process of integrating the TMDL program into the 
Bay Program.
    By committing to this integration process, the Bay Program partners 
have agreed, in essence, to give the CBP a chance to remove the 
impairments before establishing one or more TMDLs for the Bay. In so 
doing, they have charted a course that will not only avoid the waste, 
confusion, and delay of overlapping and conflicting programs, but also 
provide the opportunity to obviate the need for a Bay TMDL by removing 
the impairments before a TMDL would be established. Avoiding TMDL 
establishment is a powerful incentive for the expeditious 
implementation of water quality controls under the Bay Program.
    The CBP/TMDL integration process is federalism and innovation in 
action. In concept, this process reflects one of the best approaches to 
water quality management that EPA and the States have to offer.
    We commend EPA Region III and EPA's Bay Program Office for their 
participation and leadership to date in this integration effort. 
However, we ask this subcommittee, and the full Environment and Public 
Works Committee, to join us in encouraging EPA Headquarters to ensure 
that the final TMDL rule allows the seamless integration of the 
Chesapeake Bay program--and the stakeholder-based programs in your 
States--with the TMDL program.
    Two particular obstacles to this integration effort deserve 
mention. First, for integration to succeed, EPA and the States must not 
be required to use NPDES permits as the sole mechanism for implementing 
TMDLs for point sources.
    This is not to say that the Bay Program, for example, relies 
entirely on voluntary pollution control measures or that sources of 
pollution may do as they please. Rather, it means that the individual 
Bay States have retained considerable discretion to choose the 
appropriate means of achieving the goals established by the Bay 
Program's Executive Council. Not surprisingly, a wide variety of 
mechanisms have been successfully employed to achieve the Bay Program's 
nutrient reduction goals--some are regulatory in nature, some are not, 
but none are Federal mandates. Examples include, State and local 
sediment control statutes and ordinances, State and local stormwater 
management programs, phosphate detergent bans, agricultural cost share 
programs, and State point and non-point source grant funding. NPDES 
permit limits have been employed, but only at the States' discretion, 
in special circumstances.
    Both Maryland and Virginia have utilized grant agreements as the 
mechanism to implement biological nutrient removal (``BNR'') at POTWs 
in accordance with their approved Chesapeake Bay tributary strategies. 
To date, dozens of POTWs in Virginia and Maryland have signed such 
agreements (which provide 50-percent grant funding), and have either 
installed, or are in the process of installing, BNR at costs totaling 
hundreds of millions of dollars. Not one POTW in either State has 
refused to execute a grant agreement when offered the opportunity to 
participate. Other POTWs have installed BNR voluntarily with the 
expectation that they will be reimbursed in the future for 50 percent 
of the cost.
    The point source grant agreement programs in Virginia and Maryland 
are remarkable, not only for the millions of pounds of nutrient 
reductions they have achieved to date, but also for the speed and 
efficiency with which they are administered. For example, in 1998, some 
14 agreements calling for the installation of over 3100 million in 
nutrient controls were negotiated and executed in a matter of weeks in 
Virginia. It would have taken months, if not years, and countless 
public resources, to issue NPDES mandating similar reductions.
    The proposed TMDL rules threaten to replace the cooperative point 
source grant agreement programs in Virginia and Maryland with NPDES 
permit limits for nitrogen and phosphorous for all point sources in the 
Chesapeake Bay watershed. This would fundamentally alter the Chesapeake 
Bay Program by imposing, for the first time, a broad Federal mandate 
that would effectively override alternative State approaches to 
implementing nutrient controls.
    The integration process is about giving the Bay Program--and 
similar programs nationwide--an opportunity to remove the impairments 
before a TMDL is established. The Bay Program has little meaning if one 
of its most accepted and successful implementation mechanisms is 
replaced with federally mandated permit limits. The effect will be to 
slow the pace of nutrient reduction, drive up costs, and waste Federal, 
State, and local resources, which could be far more effectively 
utilized elsewhere.
    For these reasons, VAMWA and MAMWA urge EPA to improve on its draft 
proposal by restoring the Bay States' discretion to continue to utilize 
grant agreements as the primary mechanism for implementing point source 
nutrient controls. We want to emphasize that we are not proposing that 
the States be precluded from utilizing nutrient limits in appropriate 
cases, only that their discretion to use grant agreements or other 
mechanisms be preserved. In fact, we believe there may well be 
instances where nutrient limits in NPDES permits are appropriate, such 
as those rare cases where sources refuse to install nutrient controls 
called for in a final tributary strategy.
    The second noteworthy obstacle to the integration process is EPA's 
proposed offset requirement. The offset proposal is unnecessary in the 
context of the Chesapeake Bay/TMDL integration process because the 
signatories to the Bay Agreement are developing an ``interim cap'' 
strategy that has the same goal as EPA's offset proposal; namely, to 
avoid increased loadings of pollutants contributing to the Bay's 
impairment until loading capacities for the Bay and its tidal 
tributaries are identified and allocated. Significantly, the Bay 
Programs loading cap will apply to far more sources than would be 
possible under EPA's TMDL program.
    In addition to being unnecessary, EPA's offset proposal also 
threatens to bring a halt to continued voluntary point source nutrient 
reductions. POTWs in the Bay watershed have, and continue to, 
voluntarily install nutrient controls based on Federal and State 
assurances that they will not be penalized for their efforts. 
Unfortunately, EPA's offset proposal suggests that their reliance on 
these assurances may have been misplaced, and that POTWs voluntarily 
installing nutrient controls risk losing offsets from these upgrades 
that they may need for future growth. Although EPA's proposal does not 
say that voluntary reductions now may not be applied as future offsets, 
it also does not say they can be used for this purpose. Consequently, 
the resulting uncertainty is sure to slow, if not halt, continued 
commitments by point sources to voluntarily reduce their discharge of 
nutrients. The integration process has no chance of working unless this 
problem is clearly addressed in the final rule.
    It is also worth noting that EPA's proposed offset requirement is 
wholly inconsistent with the promising concept of ``smart growth.'' The 
reality today is that most urban waters do not consistently, and will 
never, meet the very stringent water quality standards currently in 
place. That means the offset requirement will provide a strong 
disincentive or prohibition to renewal projects in typical smart growth 
areas. The offset requirement will have the counterproductive result of 
driving new development to green field areas and, thereby, promote 
sprawl and the degradation of more healthy and productive watersheds 
EPA should eliminate the offset requirement until the Agency develops a 
more integrated policy that takes into account competing programs such 
as smart growth.
    Finally, Mr. Chairman, we urge you and your colleagues to require 
EPA to hold a second public comment period on the Agency's proposed 
revisions to the TMDL rules. A second opportunity for comment is 
warranted given the sheer number of comments that EPA received as well 
as the number of open-ended questions on which EPA sought and received 
public input. Providing a brief second public comment period, 
hopefully, on a more focused proposal from EPA, is a matter of 
fundamental fairness in these circumstances.
    Thank you.
                                 ______
                                 
COMMENTS OF THE VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, 
  INC. AND THE MARYLAND ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, 
                                  INC.

    The Virginia Association of Municipal Wastewater Agencies, Inc. 
(``VAMWA'') and the Maryland Association of Municipal Wastewater 
Agencies, Inc. (``MAMWA''), whose municipal members serve the vast 
majority of the sewered population in Virginia, Maryland, and the 
District of Columbia, appreciate the opportunity to submit these 
comments on the captioned proposals as they relate to and affect the 
ongoing process for integrating the Chesapeake Bay Program into the 
Total Maximum Daily Load (``TMDL'') program.
    These comments supplement comments submitted today by VAMWA and 
MAMWA on all aspects of the captioned proposals.
                             i. background
    On May 3, 1999, EPA, Region III, over the objections of the 
Commonwealth of Virginia, VAMWA, and others, listed the Virginia 
portion of the Chesapeake Bay and its tidal tributaries as impaired for 
dissolved oxygen (``D.O.'') and aquatic life pursuant to section 303(d) 
of the Clean Water Act, 33 U.S.C. 1313(d). Excessive nutrients were 
identified by EPA as the cause of the impairments.\1\ Among their 
objections to the listing decision, the Commonwealth and VAMWA 
expressed grave concerns over the impact of the listing decision on the 
Chesapeake Bay Program's long-standing nutrient and sediment reduction 
initiatives. Specifically, Virginia, VAMWA, and others pointed to the 
redundancy, waste, confusion and delay that would result from 
overlapping and conflicting programs directed at the same water quality 
issues.
---------------------------------------------------------------------------
    \1\ Maryland had previously listed its portion of Chesapeake Bay 
and tidal tributaries as impaired for D.O. caused by excessive 
nutrients as part of that State's 303(d) list.
---------------------------------------------------------------------------
    In response to these concerns, the Chesapeake Bay Agreement 
signatories\2\ agreed during the summer of 1999 to embark upon a 
process of integrating the Chesapeake Bay Program into the TMDL 
program. The goal of this process is to remove the impairments that are 
the basis for the listing decisions in both Virginia and Maryland 
utilizing the Chesapeake Bay Program rather than TMDLs. To achieve this 
goal, the impairments must be removed and the Bay and its tidal 
tributaries delisted prior to May 2011, which is the court ordered 
deadline for the establishment of TMDLs for all currently listed 
Virginia water segments: otherwise, they would be subject to TMDL 
establishment.
---------------------------------------------------------------------------
    \2\ The Bay Agreement signatories include EPA, the States of 
Virginia, Maryland, Pennsylvania, the District of Columbia, and the 
Chesapeake Bay Commission.
---------------------------------------------------------------------------
    Although the details of the integration process are still under 
development, its basic elements have been identified. The process 
begins with development of scientifically based, ambient water quality 
endpoints (use designations and criteria to support the designations), 
which, when achieved, will eliminate the impairments identified by EPA 
and provide the basis for delisting. Once the endpoints are developed, 
the individual Bay States will revise their water quality standards to 
incorporate the endpoints. The existing Chesapeake Bay Program 
tributaries strategies processes will then be used to identify and 
allocate the nutrient and sediment load reductions required to meet the 
revised water quality standards. A Bay-wide ambient monitoring program 
will track progress toward attainment of the revised standards, and, as 
the standards are attained, the Bay or segments of the Bay, as 
appropriate, will be delisted. Bay TMDLs will be established only to 
the extent the Bay or segments of the Bay have failed to attain one or 
more of the revised standards by May 2011.
    While the endpoint development process is underway, EPA and its Bay 
Program State partners will develop and implement an ``interim cap'' 
strategy to maintain the Chesapeake Bay Program's long-standing year 
2000 forty-percent nutrient reduction goal until permanent caps are 
developed based on the endpoints discussed above.
    By committing to this integration process, the Bay Program partners 
have agreed, in essence, to give the Chesapeake Bay Program a chance to 
remove the impairments before establishing one or more TMDLs for the 
Bay. In so doing, they have charted a course that will not only avoid 
the waste, confusion, and delay of overlapping and conflicting 
programs, but also provide the substantial benefit of providing an 
opportunity to obviate the need for a Bay TMDL by removing the 
impairments before a TMDL would be established. Avoiding TMDL 
establishment is a powerful incentive for the expeditious 
implementation of nutrient and sediment controls.
    In summary, the Chesapeake Bay Program integration process is 
federalism and innovation in action. In concept, this process reflects 
one of the best approaches to water quality management that EPA and the 
States have to offer. EPA should do everything possible in this 
rulemaking to promote the integration process and remove any obstacles 
to its successful implementation. Indeed, EPA will have failed to 
follow through on its commitment to the integration process unless it 
clears the way for this process in this rulemaking.
      ii. impact of the proposed rules on the integration process
    Unfortunately, in their present form, the proposed rules are a 
potentially serious obstacle to successful implementation of the 
integration process, both for what they do and what they do not do in 
two critical areas.

A. If the Integration Process is Going to Work, the Bay States Must 
        have the Discretion, Not the Mandate, to Require Nutrient 
        Limits in NPDES Permits Prior to TMDL Establishment
    The Chesapeake Bay Program is unique in many ways, not the least of 
which is the inclusive, cooperative relationship that exists between 
its many partners, including the Bay Program signatories, environmental 
advocacy groups, local governments, agriculture, industry, and others 
with a stake in the future of the Chesapeake Bay. The essence of a 
partnership such as the Bay program, and the element that makes it 
work, is its reliance principally on agreement, rather than mandate, to 
achieve its goals.
    This is not to say that the Bay Program relies entirely on 
voluntary pollution control measures or that sources of pollution may 
do as they please. Rather, it means that the individual Bay States are 
given considerable discretion to choose the appropriate means of 
achieving the goals established by the Bay Program's Executive Council. 
To date, a wide variety of mechanisms have been successfully employed 
to achieve the Bay Program's nutrient reduction goals--some are 
regulatory in nature, some are not, but none are Federal mandates. 
Examples include, State and local sediment control statutes and 
ordinances, State and local stormwater management programs, phosphate 
detergent bans, agricultural cost share programs, and State point and 
non-point source grant funding. NPDES permit limits have been employed, 
but only at the States' discretion in two instances within the 
framework of the Chesapeake Bay Program's nutrient reduction 
initiatives. First, phosphorous limits have been imposed on selected 
dischargers to certain water segments identified as nutrient enriched 
in the State water quality standards. Second, the tributaries 
strategies process has used the threat of NPDES nutrient limits for 
those point sources unwilling to voluntarily implement the nutrient 
controls called for in the tributary strategies.
    Both Maryland and Virginia have utilized grant agreements as the 
mechanism for implementing biological nutrient removal (``BNR'') at 
POTWs in accordance with their approved Chesapeake Bay tributary 
strategies. To date, dozens of POTWs in Virginia and Maryland have 
signed such agreements (which provide 50-percent grant funding), and 
have either installed, or are in the process of installing, BNR at 
costs totaling hundreds of millions of dollars. Not one POTW in either 
State has refused to execute a grant agreement when offered the 
opportunity to participate, while many other POTWs have proceeded to 
install BNR voluntarily with the expectation that they will be 
reimbursed in the future for 50 percent of the cost. The point source 
grant agreement programs in Virginia and Maryland are remarkable, not 
only for the millions of pounds of nutrient reductions they have 
achieved to date, but also for the speed and efficiency with which they 
are administered. For example, in 1998, some 14 agreements calling for 
the installation of over $100 million in nutrient controls were 
negotiated and executed in a matter of weeks in Virginia It would have 
taken months, if not years, and countless public resources, to issue 
NPDES mandating similar reductions.
    As currently proposed, EPA's new rules threaten to wipe away the 
cooperative point source grant agreement programs in Virginia and 
Maryland presently used for achieving nutrient load reductions in 
Maryland and Virginia, and in their place, require nitrogen and 
phosphorous limits for all point sources in the Chesapeake Bay 
watershed. Combined with the listing decisions, it could fundamentally 
alter the Chesapeake Bay Program by imposing, for the first time, a 
broad Federal mandate that would effectively override State decisions 
regarding the appropriate mechanisms governing the implementation of 
nutrient controls.
    The integration process is about giving the Bay Program an 
opportunity to remove the impairments before a TMDL is established. The 
Bay Program has little meaning if one of the Bay Program's most 
accepted and successful implementation mechanisms is replaced with 
federally mandated permit limits. The effect will be to slow the pace 
of nutrient reduction, drive up costs, and waste Federal, State, and 
local resources, which could be far more effectively utilized 
elsewhere.
    For these reasons, VAMWA and MAMWA urge EPA revise its proposal to 
preserve the Bay States' discretion to continue to utilize grant 
agreements as the primary mechanism for implementing point source 
nutrient controls. We want to emphasize that we are not proposing that 
the States be precluded from utilizing nutrient limits in appropriate 
cases, only that their discretion to use grant agreements or other 
mechanisms be preserved. In fact, we believe there may well be 
instances where nutrient limits in NPDES permits are appropriate, such 
as those rare cases where sources refuse to install nutrient controls 
called for in a final tributary strategy.
    Although there are several ways that the States' discretion could 
be preserved in the final rule, we believe the best approach would be 
to revise 40 C.F.R. 122.44(d)(1)(ii), which identifies the factors to 
be considered by the permitting authority in making reasonable 
potential determinations, to read, in relevant part, as follows:

          (ii) When determining whether a discharge causes, has the 
        reasonable potential to cause, or contributes to an in-stream 
        excursion above a narrative or numeric criteria within a State 
        water quality standard, the permitting authority shall use 
        procedures which account for . . . planned controls on the 
        discharge where the installation and performance of such 
        controls is required and enforceable by the permitting 
        authority utilizing an appropriate implementation mechanism . . 
        .

B. EPA's Offset Proposal Is Unnecessary and Threatens to Halt Continued 
        Voluntary Point Source Nutrient Reductions
    The offset proposal is unnecessary in the context of the Chesapeake 
Bay/TMDL integration process given the ``interim cap'' strategy 
discussed above. Its goal is the same as the goal of EPA's offset 
proposal; namely, to avoid increased loadings of pollutants 
contributing to the impairment until loading capacities of the Bay and 
its tidal tributaries are identified and allocated.
    In addition to being unnecessary, EPA's offset proposal also 
threatens to bring a halt to continued voluntary point source nutrient 
reductions. POTWs in the Bay watershed have voluntarily committed, and 
continue to commit, to the installation of nutrient controls based on 
Federal and State assurances that they will not be penalized for their 
efforts. Unfortunately, EPA's offset proposal suggests that their 
reliance on these assurances may have been misplaced, and that POTWs 
voluntarily installing nutrient controls risk losing offsets that they 
may need for future growth. Although EPA's proposal does not say that 
voluntary reductions may not be applied as future offsets, it also does 
not say they can be used for this purpose. Consequently, the resulting 
uncertainty is sure to slow, if not halt, continued commitments by 
point sources to voluntarily controls on the discharge of nutrients. 
The integration process has no chance of working unless this problem is 
clearly addressed in the final Nile. Therefore, we propose that the 
proposed definition of ``reasonable further progress: in the 
antidegradation rule be revised as follows:

          [T]o authorize a new discharger or an existing discharger 
        undergoing a significant expansion . . . reasonable further 
        progress shall be made toward attaining the water quality 
        standard. Reasonable further progress for these dischargers 
        means, at a minimum, that any increase in mass loadings of the 
        pollutant(s) causing the nonattainment will be offset by 
        pollutant(s) load reductions of the pollutant(s) causing the 
        nonattainment by a ratio of at least equal to 1.5:1. In the 
        case of any increase in mass loadings of any pollutant(s) 
        causing the nonattainment of any water quality standard 
        applicable to the Chesapeake Bay any of its tributaries. 
        reasonable further progress may be made by the discharger 
        agreeing to install controls on the new discharge or 
        significantly expanded discharge and any existing discharge of 
        such pollutant(s) in accordance with a tributary strategy 
        developed pursuant to the Chesapeake Bay Program where the 
        installation and performance of such controls is required by 
        and enforceable by the permitting authority utilizing an 
        appropriate implementation mechanism.

    Again, thank you for the opportunity to submit these comments. If 
you have any questions, please do not hesitate to contact James T. 
Canaday (VAMWA) at 703-549-3381 or email [email protected] or Cy 
Jones (MAMWA) at 301-206-8831 or email [email protected].
                                 ______
                                 
  STATEMENT OF DAVID SKOLASINSKI, ON BEHALF OF MINNESOTA IRON MINING 
            ASSOCIATION AND THE NATIONAL MINING ASSOCIATION

    Mr. Chairman and members of the subcommittee. My name is David 
Skolasinski. I am pleased to testify on behalf of the National Mining 
Association (NMA), and as the Chairman of the Environmental Committee 
of the Iron Mining Association of Minnesota (IMA). The NMA's members 
include the producers of most of America's coal, metals, industrial and 
agricultural minerals; manufacturers of mining and mineral processing 
machinery, equipment and supplies; transporters; financial and 
engineering firms; and other businesses related to coal and hardrock 
mining. The Iron Mining Association of Minnesota (IMA) is a trade 
association representing iron ore producers and the businesses that 
supply goods and services to the iron mines. Both NMA and IMA members 
have a substantial interest in these rulemakings because most either 
own or operate facilities requiring NPDES permits under the Clean Water 
Act.
    I have a Bachelor of Sciences degree in Aquatic Biology and a 
Masters of Sciences degree in Fisheries and Wildlife Management, both 
from Michigan State University. In addition, I have 26 years of 
environmental management experience in the mining industry with mines 
producing base metals, precious metals, and iron. I spent 12 of these 
years working in five of the western States. During that time, I was 
responsible for permitting and environmental management. I have 
extensive experience with programs for addressing acid rock drainage at 
both old and new mines. Thereafter, I spent 14 years in the Midwest, 
gaining extensive experience with water quality permitting and 
management. I also have experience with the Great Lakes Initiative and 
the Bi-National Program.

                              INTRODUCTION

    I will begin by saying that the organizations I represent today 
support the development of a more comprehensive program that can 
effectively address multi-source water quality impairments through a 
watershed approach. Furthermore, I believe that EPA's continued focus 
on basin-wide planning, addressing both point and non-point sources, 
provides the best approach for achieving maximum water quality. 
However, TMDL development must work in tandem with other watershed 
provisions of the Clean Water Act (CWA). Such a program must be based 
on a sound understanding of (1) the limits of scientific knowledge, 
particularly with regard to complex watersheds; (2) practical 
ramifications, i.e. impacts on local economies and interim restrictions 
on point source discharges; (3) legal requirements; and (4) effective 
public policy. Finally, and most important, EPA must give States the 
flexibility to implement their programs in a manner reflecting each 
State's unique and complex local circumstances.
    The TMDL Program must be both focused and flexible. The broad 
listing requirements EPA proposes will dissipate the already scarce 
resources necessary to prepare technically and legally defensible 
TMDLs. We agree that EPA should require States to develop a methodology 
to determine when waters should be listed as impaired. However, as 
proposed, the rule fails to adequately ensure that the individual 
States methodologies will yield listing decisions that are clear, 
objective, and scientifically valid. Furthermore, States must have the 
flexibility to focus their 303(d) listing and TMDL development efforts 
on those waters that are ``pollutant-impaired.'' Other waters should be 
dealt with through alternative lists and programs specifically intended 
for tracking their progress toward attaining standards. Section 305(b) 
is the proper place for tracking such waters that may not currently be 
attaining water quality standards but for which TMDLs are not the 
appropriate solution. In this way, the 303(d) list would be reserved 
for those waters as to which implementation of TMDLs is an effective 
means to bring about attainment of standards.
    The CWA and its implementing regulations consistently stress 
Congress' intent to provide the States with broad discretion to develop 
policies and procedures to implement water quality standards. The 
Proposed Regulations therefore should incorporate options that will 
provide States with the flexibility to address site-specific issues. 
For example, EPA's failure to include phased TMDLs in the proposal 
could significantly limit the flexibility provided to the States. In 
addition the proposal contains new, severe restrictions on new and 
increased discharges from point sources. We have serious concerns about 
these inflexible provisions, the arbitrary offset requirements, the 
timing of the offsets, and the liability of some sources for reductions 
by other sources. The ultimate impact of these inflexible provisions is 
that the dischargers will be discouraged--rather than encouraged--from 
implementing voluntary early reductions.
    The TMDL program, as crafted by EPA, will be very expensive for the 
States and regulated parties to implement and the resulting 
environmental benefits of such a program remain questionable. For 
example, the proposal fails to recognize the difficulties and 
uncertainties regarding historic or legacy pollutants--where non-
attainment is due in part, or entirely, to historic problems such as 
contaminated sediments, acid rock drainage, air deposition including 
deposition from naturally occurring sources such as forest fires, 
volcanoes, natural wind-blown silt from glaciers, and naturally 
occurring background levels of metals in certain geographic locations. 
Pursuant to the proposal, it is likely dischargers will be required to 
purchase and install control equipment before it can be determined that 
the load reductions requiring the control equipment are necessary and 
in some instances where such drastic reductions from point sources will 
not significantly contribute to attainment of the water quality 
standard. For example, the practical result of EPA's proposal is that 
States will be forced to develop TMDLs based upon limited or inadequate 
scientific data, resulting in stringent NPDES permit limits that 
ultimately may be relaxed once additional data are developed. Thus, 
EPA's proposed rules may force significant capital expenditures to 
achieve load reductions from existing discharges that ultimately may 
prove totally unnecessary. We believe it is irresponsible for 
regulators to require current discharge to comply with the excessive 
burden of permit reductions unless such reductions would be expected to 
significantly improve water quality for the pollutant of concern within 
the next 5 year NPDES permit cycle.

  303(D) LISTING AND TMDL DEVELOPMENT ARE IMPROPERLY SUITED FOR WATER 
  BODIES IMPAIRED PREDOMINANTLY BY HISTORIC OR LEGACY POLLUTANTS AND 
                    CERTAIN OTHER NON-POINT SOURCES

    In the proposed rules, EPA requires States to list waters that are 
impaired due to air deposition, acid rock drainage and other sources, 
even if those sources are not regulated as point sources under the Act. 
We agree with a number of members of this subcommittee that not only is 
this requirement not supported by the statute, but it is illogical and 
without scientific basis. It is currently scientifically impossible to 
model nonpoint source impairments with any degree of certainty. 
Furthermore, according to a February 10, 2000 statement of Mr. Peter 
Guerrero on behalf of the General Accounting Office (GAO), the States 
themselves report a need for additional analytical methods and 
technical assistance to develop TMDLs for the more complex, nonpoint 
sources of pollution. Therefore, requiring States to expend resources 
developing defensible TMDLs for such impairments is futile.
    Further, many sources of pollutants originating from air deposition 
will likely be located outside the State and even outside the country. 
Individual States have no authority to control these sources. 
Consequently, no amount of effort by the State through the TMDL program 
will result in improvement of the impaired waterbodies. Unfortunately, 
under the proposed TMDL program, point sources discharging to the 
impaired waters will be subjected to discharge restrictions imposing 
considerable costs and impairing future growth opportunities. New point 
sources would likely be prohibited from discharging to impaired waters 
which would further restrict growth in the State. I suggest that all of 
this would occur with little if any improvement of water quality.
    I am very familiar with an example that illustrates this point 
existing in Northeastern Minnesota. Virtually all of the lakes and 
streams in the Lake Superior watershed are listed as impaired for 
mercury. Aside from the fact that the State's impairment determination 
is scientifically unfounded, as much as 90 percent of the mercury 
entering the State comes through air deposition and (other nonpoint 
sources of mercury) from sources outside the State. Under the current 
proposal, point source dischargers, both municipal and industrial, 
would be severely impacted and growth throughout the entire region 
would virtually come to a halt. Yet, mercury from air deposition (and 
other nonpoint sources) would continue to contribute the same amount of 
mercury to the State's impaired waters, thereby precluding achievement 
of water quality standards.
    This same scenario exists with regard to elements aside from 
mercury that exist ubiquitously throughout the earth's crust. 
Background levels in soils typically exceed acceptable criteria in 
certain ore bearing regions. There are numerous geologic studies and 
historical records demonstrating that surface ore deposits and metals-
enriched soils contribute to natural background conditions. Therefore, 
despite drastic reductions or zero discharge requirements imposed on 
point source dischargers coupled with restrictions on all new or 
increased dischargers, water quality standards simply cannot be 
achieved in these situations. We suggest that it is illogical to impose 
such reductions on point source dischargers in the face of evidence 
clearly showing that eliminating all point source discharges from a 
waterbody will not result in achievement of water quality standards. 
Yet, this is the practical effect of EPA's proposal. Aside from the 
unwarranted restrictions on point source dischargers, EPA is setting 
States up to fail by requiring them to develop TMDLs in situations 
where the TMDL is not the appropriate mechanism for addressing such 
unique problems.
    EPA's process for downgrading water quality standards to reflect 
natural background pollutants is not the solution. EPA's proposed rule 
virtually ignores the downgrading process, which should be considered 
as a mandatory requirement before any waterbody is listed. States 
developed their water quality standards very generally without respect 
for the TMDL process about to unfold and they need time to adjust those 
standards with far greater specificity. Moreover, EPA's downgrading 
process, aside from its inherent deficiencies, is unclear as to its 
applicability to pollutants that, while man-induced, originate from 
airborne sources or historical practices.
    For these reasons, the practice of adopting a TMDL prior to the 
development and implementation of a plan for addressing non-point 
source pollution may actually cause degradation of the water quality in 
parts of the waterbed. This could occur if current discharges are 
substantially reduced or completely eliminated. For example, consider a 
point source currently discharging metals in concentrations higher than 
its assigned loading but below the concentrations in the receiving 
waters. If the only means of achieving its assigned load allocation is 
to stop the discharge altogether, the receiving water's metals 
concentration below the discharge will actually increase. In other 
words, elimination of a ``cleaner'' discharge will result in 
``dirtier'' flow once the ``cleaner'' discharge is removed from the 
total flow. Accordingly, it makes no sense to ratchet down on point 
source discharges prior to addressing the overall non-point source 
metals contributions.
    An even more perverse result would occur where the TMDL has 
assigned loadings to point sources that require discharges at 
concentrations lower than the water quality standards. Again, if the 
only way to achieve the load allocation is through elimination of the 
source of the discharge altogether the TMDL would in effect be taking 
away from the waterbed a certain amount of assimilative capacity that 
the point source is contributing.

                                OFFSETS

    Under the current proposal, new and significantly expanding 
dischargers to impaired waters would face excessively onerous burdens 
as a prerequisite to obtaining an approved NPDES permit. EPA suggests 
that the proposed mandatory offset provisions are designed to provide 
opportunities for such discharges to impaired waters. Without 
elaborating on all of the reasons we believe the offset proposal is 
unworkable, I will point out the most obvious. EPA fails to consider 
situations like the Northeastern Minnesota mercury example I referred 
to earlier where virtually all waters in the region have been deemed 
impaired. In this situation, if all dischargers are subjected to a ``no 
detectable'' discharge requirement, offset credits simply will not be 
available throughout the entire region. Further, even if a point source 
had credits available, it would not likely offer them for sale but 
rather would hold onto them because of the uncertainty as to what load 
reduction it will face in the forthcoming TMDL, or for its own future 
growth. In certain regions of the country, particularly in regions 
plagued by historic or legacy water quality problems, all future growth 
and development activities involving a pollutant causing impairment 
will be brought to a halt. We suggest that EPA has not done a thorough 
analysis of the practical implications of this drastic mandatory 
provision and therefore, the provision should be removed from the rule.
Alternatives to Offsets
    We suggest alternatives to the mandatory offset requirements 
whereby States would have the flexibility to develop their own local 
solutions to bringing waters into compliance should be encouraged. 
Here, the operative principle must be progress toward standards over 
time and across the watershed. EPA's requirement that an offsetting 
reduction must occur at the same time as the new or increased discharge 
is unnecessary and, in fact, will be counterproductive. This 
requirement, by giving no credit for long-term reductions, will 
discourage sources from participating in voluntary reduction activities 
in their watersheds that may yield real water quality benefits.
    Although the proposed rule mentions that TMDLs may be developed on 
a watershed basis, the case-by-case offset provisions outlined in the 
rule appear to prohibit a watershed approach. A watershed approach, 
which centers on a voluntary efforts should be the preferred approach 
for obtaining the desired reductions.
    An example of such a voluntary approach to obtaining offset 
reductions for a specific pollutant has been successful in Minnesota. 
Minnesota currently has two watershed based initiatives, the Mercury 
Reduction Initiative and the Watershed Unification Initiative. When 
fully implemented, these will provide significant reasonable further 
progress from point and nonpoint sources. According to the Minnesota 
Pollution Control Agency (MPCA), baseline data for mercury indicates 
nearly a 50 percent reduction in mercury releases from 1990 to 1995 as 
a result these programs. An additional 60 percent is expected by the 
end of 2000 and 70 percent by 2005. It is anticipated that the 
reductions through 2005 will be obtained primarily through voluntary 
efforts by municipal and industrial sources. It is important to note 
that this voluntary effort is consistent with EPA's Great Lakes Bi-
National Program and the Bi-National Toxics Strategy, nevertheless, we 
believe its future is threatened by EPA's proposed offset requirements.
    A similar effort is also underway at the local level in 
Northeastern Minnesota. Stakeholders--including non-governmental 
organizations, business and industry, municipal and local governments, 
research and education institutions, and the general public within the 
St. Louis River Watershed are developing a watershed group. Although 
this initiative is in its early stages, it is expected to result in 
reasonable further progress as stakeholders, through cooperative 
efforts, will make pollutant reductions. However, many fear that the 
proposed offset provision in EPA's proposed rule will be a disincentive 
and likely prohibit this effort from moving forward unless this 
alternative approach is allowed.
    The TMDL program proposal also threatens to be a disincentive to a 
proposed municipal wastewater consolidation project. The project 
anticipates piping minimally treated municipal wastewater from a number 
of small communities to a regional treatment facility where improved 
treatment is provided. The consolidation would result in an increased 
discharge at the regional facility in excess of the 20 percent 
significant expansion threshold, triggering the requirement for mercury 
offsets. Unfortunately, offsets will likely never be available due to 
historic mercury impairments and therefore, this environmentally 
beneficial local watershed project will never be realized.

                               CONCLUSION

    In conclusion, States in conjunction with stakeholder groups should 
be provided the flexibility to develop water quality improvement 
programs that will yield reasonable further progress in a practical 
manner emphasizing long-term load reduction potential rather than rigid 
restrictions that apply unless immediate offsets can be achieved. The 
foundation for such programs should be technically sound water quality 
standards and high quality data and tools for addressing achievement of 
those standards. Those State programs should focus on action that will 
yield significantly enhanced water quality, rather than imposing 
arbitrary load reductions on the sources not responsible for 
contributing to the impairment.
    Mr. Chairman, I commend you and the subcommittee for providing this 
forum for discussing EPA's proposed revisions to the regulatory 
requirements under the Clean Water Act. We urge Congress to encourage 
EPA to reconsider the June, 2000 deadline for finalizing this rule 
proposal. These oversight hearings and the more than 30,000 public 
comments indicate that EPA has failed to adequately consider all of the 
impacts of this proposal. It would be a mistake to move forward at such 
a rapid pace in the face of all these uncertainties.
                                 ______
                                 
         STATEMENT OF NINA BELL, EXECUTIVE DIRECTOR, NORTHWEST 
                        ENVIRONMENTAL ADVOCATES

    Mr. Chairman and members of the committee: My name is Nina Bell. I 
am the Executive Director of Northwest Environmental Advocates, a 31-
year-old organization working in Oregon and Washington on issues 
related to energy and the environment. We have been working since 1987 
to promote implementation of the Clean Water Act's water quality-based 
approach to protecting public waters. To this end, we have actively 
participated in the review and development of State water quality 
standards and State water quality rules, State policies for Total 
Maximum Daily Load (TMDL) programs and individual TMDLs, U.S. 
Environmental Protection Agency (EPA) rules on water quality standards 
and TMDLs, individual and general discharge permits, and State nonpoint 
source programs. We also have been engaged in litigation regarding the 
inadequate TMDL programs of Washington and Oregon, since 1991 and 1994 
respectively, as well as citizens suits seeking enforcement of 
discharge permits. At the State level we have participated in a wide 
range of advisory committees in Oregon and Washington, including 
triennial reviews of water quality standards, State rules and policies 
for water quality management, and programs focused on data collection 
such as the Lower Columbia River Bi-State Water Quality Committee of 
which I was a Co-Chair. I was a member of EPA's Federal Advisory 
Committee on TMDLs\1\ and prepared extensive comments on EPA's proposed 
TMDL rule.\2\
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    \1\ Widespread litigation by citizens groups to enforce the 
mandatory provisions of the Clean Water Act's TMDL program led EPA to 
seek ways to strengthen this water quality clean-up program. CWA 
Sec. 303(d), 33 U.S.C. Sec. 1313(d). The agency has worked to improve 
technical support to States and has issued a number of policy 
memoranda. See, e.g., Memorandum dated August 8, 1997 from Robert 
Perciasepe, Assistant Administrator [for Water], U.S. Environmental 
Protection Agency, to Regional Administrators and Regional Water 
Division Directors, New Policies for Establishing and Implementing 
Total Maximum Daily Loads. In 1996, EPA established a subcommittee of 
its National Advisory Council for Environmental Policy and Technology 
(NACEPT) to develop recommendations to strengthen the TMDL program. At 
the conclusion of nearly 2 years of weekly conference calls and six 
full committee meetings, the FACA Committee issued over 150 specific 
recommendations to EPA. U.S. Environmental Protection Agency, Report of 
the Federal Advisory Committee on the TMDL Program, EPA 100-R-98-006 
(July 1998).
    \2\ Letter to EPA Comment Clerk for the TMDL Program Rule Re: 
Proposed Revisions to the Water Quality Planning and Management 
Regulation, 40 C.F.R. Part 130, 64 Fed. Reg. 46012 (August 23, 1999), 
from Nina Bell, Northwest Environmental Advocates, dated January 20, 
1999.
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                              INTRODUCTION

    The benefits to be derived from the Clean Water Act's water 
quality-based approach, and the TMDL program in particular, are clear: 
each pollution source must take responsibility for keeping its share of 
the cumulative impacts on the human, fish, and wildlife uses of a given 
waterbody to a ``safe'' level. That is what it means for a waterbody to 
meet water quality standards, which is the interim goal of the Act and 
the goal of every TMDL. This rule of law protects all waters, 
regardless of how big or small their flow, and therefore their capacity 
to dilute pollution. It applies regardless of how many other point and 
nonpoint sources discharge or generate polluted runoff to it. Key to 
meeting water quality standards in waters that have become impaired is 
the TMDL, a scientifically based method of evaluating the cumulative 
impacts of multiple pollution sources in order to allocate 
responsibility to each source. The TMDL is simply a process by which 
the government, with public assistance, establishes how much pollution 
a waterbody can tolerate, determines what must be done to reduce 
pollution inputs so that level is not exceeded, and ensures to the 
extent possible that those responsible will carry out needed actions. 
As I will discuss below, the ``extent possible'' is limited by the 
nature of nonpoint source programs in place in each State, because the 
TMDL program itself does not create any new regulatory authority over 
otherwise non-federally regulated sources.
    By marrying the inputs of point and nonpoint sources with natural 
contributions and changes in seasonal flows, the TMDL can integrate the 
legal requirements of the National Pollutant Discharge Elimination 
System (NPDES) program with the multiplicity of nonpoint source 
programs that exist. These programs range from voluntary to regulatory, 
from local to Federal, from user-friendly to relatively useless, and 
vary widely between States.\3\ The end result of a TMDL should be a 
fair, measurable, scientifically based plan for how to bring impaired 
water back to attainment of water quality standards--how to reduce 
pollution loads to safe levels. This goal is consistent with the 
interim goal Congress sought for polluted waters in 1972 and with the 
desires of the American public in the year 2000.
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    \3\ For example, Oregon has an agricultural management planning 
law, Senate Bill 1010, that mandates agricultural plans for waters 
requiring TMDLs. No other State has a comparable law. Likewise, while 
many Western States have forest practices acts, many Southeastern 
States do not.
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    TMDLs play a critical role in the efficacy of the NPDES program. In 
the absence of TMDLs, States and EPA cannot properly establish the 
pollution controls necessary for either point or nonpoint sources, as I 
will discuss below. The control of nonpoint source polluted run-off 
itself is central to the regulation of point sources. In the absence of 
reliable nonpoint source control programs, measurable goals for 
reducing nonpoint source contributions to impaired waters, and 
commitments by nonpoint sources to significantly reduce pollution 
inputs to streams, States cannot properly establish discharge levels 
for point sources that meet legal requirements and are fair.

                        POINT SOURCE REGULATION

    The development of effluent limitations for NPDES point sources 
over the last 25 plus years should have been based on the concurrent 
application of the two prongs of the Clean Water Act: the technology-
based approach and the water quality-based approach. I have frequently 
heard a different interpretation, namely the view that when Congress 
passed the Act in 1972, it ``essentially abandoned the water quality-
based approach.''\4\ That could not be farther from the truth. Instead, 
in its wisdom, Congress fashioned the two-pronged regulatory scheme, 
one to assure each point source would use a minimum of pollution 
prevention technology and the other to ensure the use of what ever 
additional pollution controls were necessary for the protection of 
public health and the environment. Rather than abandon the water 
quality-based approach, Congress embraced it in the 1972 Act and in 
subsequent amendments.\5\
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    \4\ EPA's failures to implement the water quality-based approach, 
including TMDLs, are not testimony to Congressional intent. As 
discussed below, one could make the exact same argument about the 
technology-based approach, based on EPA's failure to implement that 
aspect of the Act.
    \5\ See, e.g., CWA Secs. 302, 303(d), 303(c), 402, 304(l).
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    The water quality-based approach of the Clean Water Act creates 
explicit restrictions for NPDES-permitted sources, restrictions that 
are tied to the quality of the water receiving the discharge. NPDES 
permits, which are first required to meet technology-based 
requirements, also must contain ``any more stringent limitation, 
including those necessary to meet water quality standards . . . or 
required to implement any applicable water quality standard established 
pursuant to this chapter.''\6\ Likewise, the Act requires that where a 
permitting authority determines that ``discharges of a pollutant from a 
point source . . . would interfere with the attainment or maintenance 
of [applicable] water quality standards, . . . effluent limitations 
(including alternative effluent control strategies) for such point 
source . . . shall be established which can reasonably be expected to 
contribute to the attainment or maintenance of such water quality.''\7\
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    \6\ CWA Section 301(b)(1)(C). The statute includes two distinct 
requirements: what is necessary to meet standards and what is required 
to implement standards. A TMDL is necessary to determine what is needed 
to implement standards, a more complicated and cumulative analysis.
    \7\ CWA Section 302(a).
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    EPA's implementing regulations mirror these statutory restrictions. 
In general, the issuance of permits is prohibited ``when the conditions 
of the permit do not provide for compliance with the applicable 
requirements of CWA, or regulations promulgated under CWA.''\8\ This 
includes ``[w]hen the imposition of conditions cannot ensure compliance 
with the applicable water quality requirements of all affected 
States.''\9\ The regulations spell out the implications for existing 
NPDES sources that are discharging into impaired streams. When NPDES 
permits are issued or reissued, EPA regulations require that the 
effluent limitations incorporated therein ``include conditions meeting 
[w]ater quality standards and State requirements.''\10\ Specifically, 
permits must contain ``any requirements in addition to or more 
stringent than promulgated effluent limitations guidelines or standards 
under [other sections of the CWA] necessary to: (1) Achieve water 
quality standards established under section 303 of the CWA, including 
State narrative criteria for water quality.''\11\
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    \8\ 40 CFR Sec. 122.4(a).
    \9\ 40 CFR Sec. 122.4(d).
    \10\ 40 CFR Sec. 122.44(d).
    \11\ 40 CFR Sec. 122.44(d)(1).
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    These required effluent limitations must control all pollutants 
that may cause or contribute to violations of water quality 
standards.\12\ In order to determine whether a discharge causes, has 
the reasonable potential to cause or contribute to an in-stream 
excursion above either narrative or numeric criteria, ``existing 
controls on point and nonpoint sources, the variability of the 
pollutant or polluting parameter in the effluent . . . and where 
appropriate, the dilution of the effluent in the receiving water'' must 
be accounted for.\13\ In other words, EPA's regulations contain an 
implicit reference to the need for TMDLs to evaluate appropriate 
effluent limits by taking the cumulative effects of multiple sources 
into consideration.
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    \12\ ``Limitations must control all pollutants or pollutant 
parameters (either conventional, nonconventional or toxic pollutants) 
which the Director determines are or may be discharged at a level which 
will cause, have the reasonable potential to cause, or contribute to an 
excursion above any State water quality standard, including State 
narrative criteria for water quality.'' 40 CFR Sec. 122.44(d)(1)(i).
    \13\ 40 CFR Sec. 122.44(d)(1)(ii).
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    In addition, EPA's regulations specifically address the issuance of 
permits for new sources or increased loads from existing sources that 
propose to discharge into impaired streams. These new loads are 
prohibited if they would ``cause or contribute to the violation of 
water quality standards.''\14\ In contrast to its own regulations which 
are soundly rooted in the statute, EPA has stated that new discharges 
can meet the terms of this restriction--in other words be deemed to 
meet water quality standards--if a so-called pseudo-TMDL, otherwise 
known as a wasteload allocation, has been developed.\15\
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    \14\ ``[An applicant] proposing to discharge into a water segment 
which does not meet applicable water quality standards or is not 
expected to meet those standards even after the application of the 
effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) 
of CWA, and for which the State or interstate agency has performed a 
pollutants load allocation for the pollutant to be discharged, must 
demonstrate, before the close of the public comment period, that: (1) 
There are sufficient remaining pollutant load allocations to allow for 
the discharge; and (2) The existing dischargers into that segment are 
subject to compliance schedules designed to bring that segment into 
compliance with applicable water quality standards.'' 40 CFR Sec. 
122.4(i).
    \15\ In practice, EPA and the States have almost entirely ignored 
the prohibition on the addition of new loads to already impaired 
waters, despite its statutory basis and that to ignore it makes clean-
up of waters pursuant to a TMDL more difficult and expensive.
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    In fact, for both new and existing sources, EPA has long clung to 
the view that such wasteload allocations, developed outside the context 
of TMDLs, are a sufficient regulatory basis upon which to develop water 
quality-based effluent limits for NPDES permits.\16\ However, terming a 
wasteload allocation a ``pseudo-TMDL'' is extremely misleading. EPA's 
reference is to an evaluation of how an individual discharge will 
impact a waterbody, a far cry from the TMDL analysis that considers the 
cumulative impacts of multiple sources, including that individual 
discharge. EPA has repeatedly countered environmental advocates' 
complaints about the failure of NPDES permits to meet water quality-
based requirements by noting that States have been developing wasteload 
allocations since 1972. Only very recently has the agency admitted that 
permit writers preparing these wasteload allocations ``neglected'' to 
factor upstream pollution into their models and calculations. In other 
words, EPA has now tacitly conceded that wasteload allocations to meet 
legal requirements cannot be developed without a TMDL for impaired 
waters.
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    \16\ EPA has even defended lawsuits alleging the agency's failure 
to meet its mandatory duty to promulgate TMDLs by stating that 
wasteload allocations are the equivalent of TMDLs. Presumably, with 
EPA's recent recognition that their calculations are deficient, it will 
no longer be asserting that claim.
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    Despite the clear legal requirements for issuing NPDES permits for 
discharges into impaired waters, EPA and the States have issued 
thousands of individual and general permits that do not meet these 
criteria and thus cause or contribute to water quality standards 
violations. The reason is that NPDES permit writers have failed to take 
into account the two fundamental ways in which a point source discharge 
can affect the water quality in a stream. First, the source can cause 
violations of water quality standards at or near the point of discharge 
simply by overwhelming a stream. The common way to evaluate this 
potential is a dilution analysis calculation. The results of modeling 
demonstrate how wide and long the plume of pollution will be after it 
leaves the discharge pipe and before it thoroughly mixes with the water 
in the stream. The phrase ``mixing zone'' is often applied to this 
analysis, referring to an area at and around the point of discharge in 
which EPA's regulations allow for the suspension of water quality 
standards. This permitted violation of water quality standards is 
further regulated by State rules, many if not most of which are 
exceedingly vague and therefore subject to abuse.\17\
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    \17\ State regulations can be as vague as the circular mandate to 
make the mixing zone ``as small as practicable.'' Other States have 
restrictions on the width, depth, and/or length of the discharge plume 
relative to the dimensions of the waterbody, e.g., 50 percent of the 
stream width. Vague restrictions on mixing zones result in abuses such 
as a 13-mile long mixing zone in an Oregon stream, which required a 
citizens lawsuit to remedy. States often fail to consider the rationale 
for mixing zones, namely that the beneficial uses of a waterbody can 
avoid the plume of unsafe water. Thus, mixing zones that extend from 
bank to bank prevent fish passage and should not be allowed. Likewise, 
mixing zones for pollutants that threaten public health (e.g., human 
pathogens in raw sewage) should not be allowed because people do not 
have the ability to detect and avoid exposure to them.
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    Problems arise from EPA's having restricted its analysis of point 
source discharges on water quality to this dilution analysis, thereby 
ignoring the second way in which point sources affect water quality, 
namely in combination with the discharges of other point sources along 
with contributions from nonpoint sources and natural background. This 
cumulative analysis of multiple sources is the product of the TMDL, 
without which a water quality-based permit that meets Federal 
requirements cannot be properly issued. In the absence of a TMDL, 
determining acceptable point sources loadings is a guessing game, 
albeit one that has gone on for over a quarter of a decade. Both the 
localized and the cumulative analyses must be done in order to 
determine the most restrictive effluent limitations required.
    Seen another way, the dilution analysis has been treated as an 
academic exercise to analyze where a discharge will cause a violation 
of standards in a hypothetical unpolluted stream of a certain flow. 
Instead, permit writers should be analyzing the effects of a proposed 
or existing discharge on a real stream with all of its existing or 
projected impairments. The conclusion that a discharge hypothetically 
would dissipate if the stream were clean is the substitution of wishful 
thinking for accurate analysis and therefore is not an appropriate 
basis for issuance of an NPDES permit. Reliance on this fiction is 
exactly why so many permits, contrary to statute and regulations, do 
currently cause and/or contribute to violations of standards throughout 
the country. That means that TMDLs will result in changes to NPDES 
permits; it also means that the degree of reductions required for point 
sources will depend upon the level of pollution controls exercised by 
nonpoint sources.
    What are these effects of TMDLs and nonpoint source controls on 
point sources? There are three general scenarios. First, there are 
impaired waters whose pollution is predominately from nonpoint sources, 
such that if all point source discharges were removed from the 
waterbody, nonpoint sources would continue to cause violations of water 
quality standards. A State could choose not to curtail the nonpoint 
sources, in which case point sources would continue to contribute to 
standards violations, remaining vulnerable to NPDES permit challenges 
and third party lawsuits. Over regulation of these point sources is 
costly and ultimately ineffective. Second, there are impaired waters 
where the pollution from point sources so predominate water quality 
that if the discharges were removed completely, the water would attain 
standards. In this situation, dramatic reductions in point source 
discharges are unavoidable. Third, point and nonpoint sources are both 
substantial contributors to impairment. Attainment of standards might 
or might not be able to be achieved by reducing discharges or removing 
point sources entirely, depending on the degree of impairment. However, 
by expecting point sources to bear the brunt of pollution controls, 
socioeconomic costs could potentially be much higher than requiring 
nonpoint sources to reduce their contribution. However, without a TMDL 
to quantify the expected reduction by nonpoint sources, States have no 
basis upon which to determine what level of point source reduction is 
appropriate. Moreover, not adequately addressing nonpoint sources in 
this context may well result in failure to achieve the desired 
environmental protection leading eventually to an increased and 
inequitable burden on the point sources. In all three scenarios, TMDLs 
represent a science-based approach to determine who should do what, 
subject to full public participation and scrutiny. This public process 
creates the greatest likelihood of achieving both equity and 
environmental protection.

                       BENEFITS OF A TMDL PROGRAM

    Simply put, the law that governs NPDES point sources makes no sense 
without the development of TMDLs. While the most absurd and inequitable 
scenario results in severe reductions in or elimination of point source 
discharges that fail to result in attainment of standards because 
nonpoint sources are not required to reduce loadings, other bad policy 
results may occur over the long term. For example, if the allocations 
in a TMDL are set based on nonpoint source controls that are not 
implemented because of insufficient incentives and/or pressure, years 
later point sources will be required to retrofit yet again, even if 
placing the burden on them makes little economic or environmental 
sense. In the interim, the benefits of clean water to the public and 
public resources have been forgone.
    TMDLs should also provide a benefit to States that are attempting 
to regulate nonpoint sources or tailor their incentive programs to meet 
the needs of impaired waters. State regulatory agencies whose mandate 
in some States is to establish Best Management Practices (BMPs) that 
are sufficient to attain water quality standards need the site-specific 
analysis provided by TMDLs. In other States where there are no such 
mandates, the voluntary and incentive programs are operating in the 
dark. Insufficiently protective non-constructed solutions, such as 
buffers, are not cost effective for taxpayer supported incentive 
programs. Lack of a TMDL poses a particular problem to sources that 
must reduce pollution by building structures, such as waste lagoons for 
animal feeding operations. Likewise, commitments to using buffers--
whether for urban streams or logging--should be based on long-term 
needs. It is far easier to leave a buffer in place than try to grow it 
back again and it is less damaging to water quality. For example, 
buffers on streams in the Pacific Northwest that are needed to restore 
stream temperatures for the protection of threatened and endangered 
salmon, will take decades to grow. Multiple retrofits are not good for 
business, whether point or nonpoint, or for the environment and public 
health.
    The development of a TMDL also creates an environment in which all 
sources are working in the same timeframe to achieve the same end. This 
is far preferable to having the permits for certain point sources come 
up for renewal, without a clear picture of what will happen with other 
point sources.\18\ In this way, point sources can have a sound 
technical basis for their effluent limits and understand the policy 
decisions that give them greater or less responsibility for cleaning up 
a waterbody relative to other point and nonpoint sources. Clean-up 
programs that rely on tax- and rate-payer support and public 
cooperation, such as urban stormwater, are more likely to be sustained 
and successful if all sources are working to achieve the same goal, and 
that goal is attainment, not just reductions.
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    \18\ An example of the benefits of looking simultaneously at all 
point sources contributing a pollutant is EPA's Columbia River Basin 
Dioxin TMDL. There, EPA made allocations to all bleached kraft pulp 
mills in the basin based on an equitable formula.
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                          EPA'S PROPOSED RULES

    In my opinion, EPA's proposed rules attempt to a limited extent to 
address the fundamental inequity between point and nonpoint sources 
that arises from the highly federally regulated status of point sources 
in contrast with the Act's emphasis on State programs for nonpoint 
sources. The agency's proposal does not go beyond what the statute 
allows and create a Federal nonpoint program, despite the various 
allegations made by nonpoint source representatives. Instead, EPA's 
proposed rules are consistent with the Clean Water Act, with much of 
the FACA recommendations,\19\ and with sound public policy. Although 
much of the rule merely memorializes EPA's current policies and 
guidance, the salient feature of the proposal is the incorporation of 
TMDL Implementation Plans in the definition of a TMDL. It is worth 
noting that, although the FACA Committee did not agree on the 
convention for Implementation Plans, it did agree unanimously to 
recommend that EPA require Implementation Plans, as key to a worthwhile 
TMDL program.\20\ The committee also agreed unanimously on the content 
of Implementation Plans, submitting over four pages of detailed 
recommendations on what such a Plan should include.
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    \19\ EPA's rules are inconsistent with the FACA Committee 
recommendations only in that they fail to address issues upon which the 
committee made recommendations (not all of which were amenable to 
rulemaking) and issues on which the committee failed to come to 
agreement.
    \20\ Although the committee's report addresses a myriad of issues 
related to TMDLs, it has one overarching theme: if the Nation is to 
embark on a serious effort to meet the requirements of section 303(d), 
it should ensure the program makes real progress toward meeting States' 
water quality standards. Thus, despite the majority representation by 
industry, land owner, municipal, and State governments, the committee 
underscored the critical nature of implementing pollution controls, not 
just generating paperwork.
---------------------------------------------------------------------------
    It was well understood then as now that TMDL Implementation Plans 
are necessary primarily to coordinate and align the multiplicity and 
diversity of nonpoint source programs. However, Implementation Plans 
will also help States to set out clearly when NPDES permits will be 
revised in order to incorporate new load restrictions determined by the 
TMDL and the timeframe in which load reductions will be obtained.\21\ 
For States that are suffering from a backlog of unrenewed permits, it 
is particularly necessary and appropriate that a TMDL Implementation 
Plan demonstrate to the public and to other pollution sources when 
NPDES permits will be revised and point sources meet their allocated 
loads. Nothing slows clean-up efforts programs more--especially those 
that are non-regulatory and/or require sustained efforts over long 
periods of time--than providing one or more pollution source with the 
opportunity to point to other sources that aren't doing their fair 
share. This can come in the form of downstream sources complaining that 
the benefits of their pollution reductions will be overridden by the 
unstemmed pollution coming from upstream, as well as upstream sources 
arguing that the benefits of their activities will be negated by the 
pollution produced by downstream sources.\22\ In addition, the TMDL 
Implementation Plans are the right place to begin the public discussion 
about permits that address storm-driven loads, such as those for urban 
stormwater and animal feeding operations, that incorporate many 
attributes of nonpoint source type controls such as Best Management 
Practices (BMPs) and post-BMP monitoring for adaptive management.
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    \21\ The public process for issuing NPDES permits addresses how 
loads are incorporated into effluent limits.
    \22\ An example of this debate is demonstrated by tensions between 
agricultural interests upstream of the city of Portland in the 
Willamette River Basin and the City with its Combined Sewage Overflows 
(CSOs) and stormwater discharges. The City argues that removing its raw 
sewage discharges from the Willamette River will not make a substantial 
difference to the river's water quality because the river is already so 
polluted by the time it runs through Portland. Agricultural interests, 
on the other hand, argue that the City's interest in lessening its 
commitment to reducing raw sewage discharges means rural sources are 
expected to reduce pollution inputs while big city interests exercise 
their political clout.
---------------------------------------------------------------------------
    However, it is the wide array of voluntary, incentive-driven, 
quasi-regulatory, and regulatory programs that may be used to obtain or 
mandate nonpoint source controls that require an Implementation Plan. 
There are several reasons. First, although TMDLs will set clear loading 
goals for nonpoint sources, because the causality between control/
restoration actions and water quality improvements is not well known, 
the clarity to nonpoint sources will be lost without an Implementation 
Plan. The Plan, in contrast to the TMDL, will spell out more easily 
understood expectations for nonpoint sources. Second, the 
Implementation Plan will include solutions to this lack of 
understanding, such as monitoring, setting out the process by which 
adaptive management techniques will employ monitoring results to 
improve controls if necessary, how and when enforcement actions will be 
taken pursuant to State or local programs, use of incentive programs, 
and the timeframe in which nonpoint sources will be expected to take 
various actions. Last, the development of Implementation Plans will 
increase the certainty that needed nonpoint source controls will occur, 
thereby reducing the likelihood that the burden for pollution 
reductions will fall entirely on point sources.
    Of course, the inclusion of an Implementation Plan does not make a 
TMDL directly enforceable by EPA, States, or third parties. An 
Implementation Plan does not mean that EPA has created a Federal 
nonpoint source program. It simply means that there will be heightened 
scrutiny by all agencies and the public to the issue of whether 
nonpoint source reductions called for by the TMDL are sufficient, 
likely to occur, and equitable.
    EPA's proposal to include Implementation Plans in the TMDL achieves 
the very important end of ensuring that TMDLs and TMDL Implementation 
Plans are both prepared and submitted to the public and EPA for review 
concurrently. Some argue that by decoupling the two, States could 
develop TMDLs faster than if they are slowed by the process of 
determining how the TMDLs will be implemented. While this is no doubt 
true, the real purpose of TMDLs is to achieve standards by sharing the 
load between sources. TMDLs without Implementation Plans will lead to 
greater burdens placed on point sources, both initially and in the 
future. Although the primary value of a TMDL with regard to point 
sources are the wasteload allocations that must be incorporated into 
NPDES permits, those allocations are highly dependent upon the load 
allocations made to nonpoint sources. Moreover, the long term value of 
those wasteload allocations will stem from the certainty that load 
reductions will be achieved by nonpoint sources. Therefore, by 
increasing the likelihood of nonpoint source load reductions, through 
concurrent submission of TMDLs and their Implementation Plans, EPA 
enhances the value that TMDLs offer point sources. This value Is an 
equitable sharing of the load and a greater degree of certainty for the 
future.
    Concurrent submission of TMDLs and Implementation Plans is also 
important to the public and to a wide variety of reviewing agencies 
(such as State Departments of Agriculture and Forestry, the National 
Marine Fisheries and U.S. Fish and Wildlife Services, and local 
governments) in order to assure appropriate nonpoint source reductions 
will take place. I had the good fortune to review a draft TMDL prepared 
by EPA that, while not meeting the definitions of the proposed rules, 
included some level of implementation planning. This was the South 
Steens TMDL for grazing in Oregon.\23\ I learned firsthand about the 
benefits of evaluating a TMDL with an Implementation Plan, as well as 
evaluating an Implementation Plan with a TMDL in hand. If the two are 
not side-by-side, it will be virtually impossible for any party, 
including EPA, to determine that either one has been done 
appropriately. Both the public and EPA benefit from the closest 
possible connection between the scientific analysis of the TMDL and 
actions set out in Implementation Plans, providing better assurance to 
the public that its tax dollars funding the TMDL program will be 
productive. Without concurrent submission, it is virtually impossible 
to evaluate whether the TMDL's analysis and load allocations to 
nonpoint sources is correct and will be meaningful in the real world.
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    \23\ South Steens Water Quality Management Plan, dated June 22, 
1998, and Total Maximum Daily Load, Public Notice Dated: July 10, 1998.
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    The reasons are obvious. If a TMDL is reviewed by EPA prior to the 
State's having analyzed the proposed solutions to implement load 
allocations to nonpoint sources, EPA will be forced to take approval/
disapproval action without the benefit of that information. Likewise, 
members of the public, including point and nonpoint sources, cannot 
judge the fairness and economic impact of a TMDL's relative allocations 
without having in hand the practical ramifications for nonpoint sources 
that will be spelled out in the Implementation Plan.
    The technical analysis for assessing the necessary levels of 
nonpoint source control actions is difficult and in its infancy. That 
makes difficult drawing a bright line between analysis of problems of 
the TMDL and proposals for solutions contained in the Implementation 
Plan. That is why Implementation Plans will include monitoring and 
measures that will be taken to respond to the results of monitoring, if 
existing and proposed controls for nonpoint sources do not prove to be 
sufficient. Implementation Plans will need to evaluate the efficacy of 
previous and current attempts to remedy identified problems to better 
understand what is needed. To address the universally recognized 
problem of determining what constitutes adequate controls for nonpoint 
sources, Implementation Plans should include three types of monitoring: 
(1) Implementation monitoring to evaluate whether actions are taking 
place; (2) Effectiveness monitoring to see if controls are meeting 
allocations; and (3) Validation monitoring to determine if TMDL goals 
have been met.
    The point of tying TMDLs and Implementation Plans together is to 
ensure that the analysis of the TMDL is translated into the changes 
that are necessary to control sources. Analysis by itself does not lead 
to appropriate control actions. That is what we will get if we have 
TMDLs and no Implementation Plans. Control actions proposed without 
analysis is what we have already; politically wrangled determinations 
of how much some land owner/user is willing to do regardless of whether 
it is sufficient. Neither one of these options is desirable if the TMDL 
program is to meet the goals of the Clean Water Act and be worth the 
significant taxpayer and private resources that will need to be 
invested. Neither option supports the needs of point sources.

                       HABITAT CONSERVATION PLANS

    In discussing the effectiveness of nonpoint source programs to 
achieve attainment of standards, many point to existing programs. One 
type of ostensible nonpoint source program is Habitat Conservation 
Plans (HCP) prepared pursuant to the Endangered Species Act. While 
there may well be some HCPs that could meet the requirements of a TMDL, 
for the most part HCPs do not perform the same function as a TMDL. The 
vast majority of HCPs do not fully address Clean Water Act issues, 
including whether and when they will lead to attainment of water 
quality standards. The FACA Committee specifically discussed the idea 
of ``TMDL substitutes'' and rejected the concept, noting that if HCPs 
or other nonpoint source programs constituted the equivalent of a TMDL 
they could be submitted as such to EPA. One particular limitation of 
HCPs is the ``no surprises'' policy that locks in maximum required 
controls for 50 or even 75 years. This alone renders HCPs absolutely 
incompatible with TMDLs and the Clean Water Act in general. Everybody 
knows that the initial controls for nonpoint sources will likely be 
insufficient and require adjustment. That is why nonpoint sources have 
talked for years about the need to use the ``iterative approach'' and 
``adaptive management.'' In contrast, HCPs do not require that nonpoint 
sources followup insufficiently effective programs with increasingly 
stringent controls.

                              DATA ISSUES

    Another complaint is that there simply are not enough data to 
support the TMDL program. States are under pressure from citizens who 
are concerned that data deficiencies will lead to polluted waters not 
being listed and TMDLs that are not adequately protective, as well as 
industries that fear being ``over regulated.'' There is no question but 
that there are insufficient data; the issue is what to do about it. The 
implication of some point and nonpoint sources appears to be that 
because the system is not perfect, EPA and the States should take no 
action to reduce pollution. However, in the face of water pollution 
problems that make people sick and bypass drinking water treatment 
facilities, that contribute to the imminent extinction of aquatic 
species, and that cause reproductive failure in birds and mammals, we 
cannot afford to take no action because we do not have sufficient data. 
Instead, we must collect more data and use the data we do have in a 
sensible, scientific manner. We must also keep in mind that no amount 
of scientific information will answer all questions to the satisfaction 
of all parties. The TMDL program rests on science to the extent 
possible, but counts on public policy to fill in the gaps. In 1972, 
Congress gave States and EPA direction on how to address the lack of 
knowledge: use a margin of safety.\24\ Many point sources understand 
that they can benefit from a reduced margin of safety and by choosing 
to collect data to assist States in developing TMDLs.
---------------------------------------------------------------------------
    \24\ CWA Sec. 303(d)(1)(C).
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    States do not collect adequate data on pollutants and their effect 
on people, fish, and wildlife and monitoring budgets for all agencies 
have steadily decreased over the last 10 years. The data States do 
collect are neither comprehensive in geographic scope nor in sufficient 
depth on individual waterbodies to develop TMDLs and to improve water 
quality standards. Many States have access to additional data but, 
despite Federal requirements, choose to ignore other sources such as 
Federal and State agencies, tribes, academic institutions, and private 
citizens.
    Differences in the effort expended by States to seek out ``all 
readily available'' data and information from other sources is one 
reason that States have extremely inconsistent section 303(d)(1) 
listings.\25\ Differences between States naturally also reflect 
differences between their water quality standards and listing criteria 
(methodology). There are a number of regions where there are stark 
contrasts between States, including between Oregon and Washington, 
according to EPA's analysis that cannot be attributed solely to 
differences in standards.\26\ The new rule has some measures to improve 
consistency between States.
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    \25\ ``Percent Impaired Waters in 1998,'' a colored map prepared by 
EPA in 1999.
    \26\ When Oregon prepared its 1994/96 section 303(d)(1) list, under 
the terms of a consent decree with us, the State actually visited the 
field of rices of agencies such as the U.S. Forest Service, thus 
obtaining data that would otherwise not have been made available. 
Washington, on the other hand, merely sends out a notice saying it will 
accept data. By taking this approach, Washington avoids using data that 
are readily available, thereby not listing streams that are impaired, 
not listing waters for all impairments for which data exist, and 
avoiding building relationships with other agencies that could support 
the TMDL program by better understanding their role with it.
    New York's low percentage coincides with remarks made by a 
representative of that State in a presentation to the FACA Committee. 
He noted that many waters identified by New York as unsafe for fish 
consumption due to toxic contamination were not placed on the State's 
section 303(d)(1) list.
---------------------------------------------------------------------------
    EPA's current regulations address the issue of whether data are 
sufficient to determine standards violations by establishing a listing 
process that takes place every 2 years. This schedule allows citizens 
and government bodies to both identify previously unidentified impaired 
waters and to demonstrate that listed impaired waters are not impaired. 
In other words, it meets the needs of all interest groups. That is why 
the FACA Committee did not recommend a change to the frequency of the 
listing cycle.
    There are also complaints about States' water quality standards 
that are applied to the data collected to generate section 303(d)(1) 
lists. Congress addressed the issue of whether State water quality 
standards are set correctly by requiring their review and revision 
every 3 years. This 3-year cycle is an appropriate time period in which 
to address changes in scientific understanding of the effects of 
pollution and incorporate those changes in States' standards.

                TECHNOLOGY-BASED POINT SOURCE REGULATION

    In evaluating the TMDL program, EPA's proposed rules, and the 
regulation of point sources, the committee should recall that EPA also 
has a long history of failing to implement the technology-based prong 
of the Clean Water Act. The technology-based approach is sheer 
pollution prevention, designed to meet the zero discharge goal of the 
Act by requiring the use of ever-improving clean-up technologies. The 
water quality-based approach, by requiring more pollution controls or 
prevention strategies than current technology-based requirements for 
streams with insufficient dilution capacity to accommodate all sources 
is technology-forcing. In this way, the water quality-based approach 
supports the technology-based approach, just the way that pollution 
control technology advances in other countries support meeting the zero 
discharge goal of the Clean Water Act. However, EPA has resisted full 
implementation of this approach, just as it has TMDLs. As a result, 
numerous lawsuits were filed by environmental organizations to force 
EPA to develop the technology-based approach\27\ as has been the case 
with TMDL program.\28\
---------------------------------------------------------------------------
    \27\NRDC v. Reilly, Civ No. 89-2980 (D.C.D.C.); EDF v. Thomas, Civ 
No. 85-0973 (D.C.D.C.) NRDC v. Thomas, Civ No. 79-3442 (D.C.D.C.).
    \28\ NEDC v. Thomas, Civ No. 86-1578-BU
---------------------------------------------------------------------------

                        SOLUTIONS AND NEXT STEPS

    The committee has welcomed recommendations on solutions and next 
steps for EPA's TMDL rule. EPA should be encouraged to continue 
evaluating the many public comments it received and promulgate a final 
rule. There is no need for Congress to intervene. EPA has not 
overstepped its statutory authority. It has proposed rules that seek 
some modicum of consistency between State programs and some modicum of 
equity between point and nonpoint sources. EPA has demonstrated some 
interest in using the TMDL program to achieve attainment of water 
quality standards. Even so, in my opinion the proposal leaves a lot to 
be desired in all three of these areas. However, given the constraints 
of the statute and EPA's desire to give States substantial flexibility 
to design their own TMDL programs, the proposal represents a tolerable 
compromise. The need for the improved clarity in the TMDL program is 
very great, considering the ever increasing number of consent orders 
and consent decrees signed by Federal courts mandating the timely 
development of TMDLs. Delay of TMDL development and/or delay of EPA's 
proposed rule also will have a negative effect on point sources, for 
which NPDES permits must continue to be issued. In sum, to delay 
promulgation of the rule is to create an inferior program in which the 
stark differences between the States remain accentuated and unresolved. 
It will also postpone the development of TMDLs that effect both 
equitable apportionment of responsibility and environmental protection.

                               CONCLUSION

    We cannot restore our impaired and over polluted waters without 
maintaining current statutory and regulatory restrictions on point 
sources. However, in order to apply these restrictions meaningfully, we 
need to complement the point source restrictions with significant 
improvements in nonpoint source controls, and timely development of 
TMDLs to assess relative responsibilities for clean-up. To retain 
current restrictions on point sources without a viable TMDL program 
that encourages States to maximize nonpoint source controls is to 
saddle EPA and the States with a system that is broken at the outset. 
To retain NPDES restrictions without effective and adequate nonpoint 
source programs is inequitable, costly, and often will not meet 
environmental goals. Congress clearly chose to place responsibility for 
establishing nonpoint source programs in the hands of the States, to be 
supported by Federal subsidy, data collection, and incentive programs, 
but it did not envision States doing nothing to control nonpoint 
sources. TMDLs are the mechanism by which States can allocate 
responsibilities between sources and act to clean up impaired waters.
    The alternative is to completely abandon the water quality-based 
approach of the Clean Water Act in favor of solely pollution 
prevention. The predictable outcome will be a marked increase in human 
health problems, endangered species, shellfish bed closures, 
reproductive failures in birds and mammals, and loss of livelihood of 
commercial and recreational fishing interests. The Clean Water Act will 
no longer offer hope to the American people that rivers, lakes, 
streams, and estuaries ever will be safe for fishing and swimming, for 
fish and wildlife.
    There is no doubt that EPA has postponed the TMDL program as long 
as it could. Propelled by citizens suits, it finally has acted to 
improve the program. Its actions are generally consistent with the 
recommendations of its FACA Committee, having applied its own judgment 
where the committee reached no agreement or failed to address an issue. 
Given the restrictions of the Clean Water Act--namely that it does not 
create Federal regulatory programs for nonpoint sources--EPA has done 
its best to fashion a program that will provide clean water through a 
fair means. The agency should be encouraged in this mission.
    Thank you for providing me with the opportunity to testify before 
you today on the future of the Nation's water quality programs. I will 
be happy to answer any questions you may have.
                                 ______
                                 
  STATEMENT OF W. JEFFREY PARDUE, DIRECTOR OF ENVIRONMENTAL SERVICES, 
                       FLORIDA POWER CORPORATION

    Mr. Chairman, Mr. Baucus, members of the subcommittee, my name is 
Jeff Pardue, Director of Environmental Services at the Florida Power 
Corporation. I am testifying on behalf of Florida Power Corporation, 
the Edison Electric Institute (EEI) and its member companies, and the 
Clean Water Industry Coalition (CWIC).
    Florida Power Corporation is the second largest investor-owned 
electric utility in Florida, and serves approximately 1.4 million 
accounts--or about 5 million people--in a service area of 20,000 square 
miles in central and north Florida. This includes the cities of St. 
Petersburg and Clearwater, and much of the area around Orlando. The 
company has 59 generating units; its fuel mix in 1999 was 35 percent 
coal, 17 percent oil, 14 percent nuclear, 13 percent natural gas and 21 
percent purchased power.
    EEI is the association of United States shareholder-owned electric 
companies, international affiliates and industry associates worldwide. 
EEI's U.S. members serve 90 percent of all customers served by the 
shareholder-owned segment of the industry. They generate over 70 
percent of all the electricity generated by electric companies in the 
country and service nearly 70 percent of all ultimate customers in the 
nation.
    CWIC is an ad hoc, multi-industry coalition. The CWIC membership is 
comprised of more than 250 companies and associations representing the 
nation's major manufacturing and service industries, including 
automobile, chemical, food processing, glass, mining, oil, plastic, 
forest and paper, real estate, steel, surface finishing, textile, 
electric and water utilities, agribusiness, transportation and 
associated industries.
    Mr. Chairman, I'd like to commend you for holding these hearings on 
EPA's proposed TMDL rules. To say, as EPA does, that the proposed 
rulemaking ``revises, clarifies, and strengthens'' current regulatory 
requirements is to substantially understate the scope and magnitude of 
EPA's new direction on TMDLs. The proposed revisions, if adopted, will 
radically transform the TMDL program and how states implement the 
entire Clean Water Act.
    The number and length of the comments submitted to the docket and 
the testimony provided during the previous five Congressional hearings 
are a good indication of the depth and breadth of concern about EPA's 
proposed changes. Comments critical of EPA's proposals were submitted 
by Federal agencies, States, Governors, State organizations, local 
governments, manufacturing interests, land-based industries, 
landowners, and others. A review of the comments and testimony 
demonstrates a striking commonality among the expressed views. A large 
majority of stakeholders raise similar issues. They seek substantial 
changes in the proposed rules.
    I am here today to represent a point source perspective on the 
proposed rules. It is important to note, however, that like the many 
other point sources I am representing, some of the activities of 
Florida Power Corporation are categorized as point sources, while 
others fall into the non-point source category. We are rarely either 
just one or the other. Furthermore, our electric customers can be point 
sources, non-point sources, or both. While the identity of interests 
between point and non-point sources is not perfect, on the most 
important issues raised by EPA's proposed rules--for example, data 
quality, offsets, implementation plans, and the bases for listing--we 
have significant agreement. We especially agree that we do not favor a 
framework that is purely regulatory or establishes a confrontational, 
zero-sum approach, pitting all the sources of pollutants to a waterbody 
against one another. Instead, we favor a problem-solving approach to 
water quality that encourages stakeholders to work together toward win-
win solutions.
    During the first hearing held by the House Water Resources 
Subcommittee, Chairman Boehlert expressed the concern that EPA is 
missing a great opportunity to move in the direction of a 
``performance-based approach'' to environmental protection and that the 
Agency's proposed framework will discourage ``innovative, stakeholder 
solutions.'' We agree, Mr. Chairman. We hope that the subcommittee 
hearings will reach the broader policy issues--as well as the more 
technical and practical issues--raised by the unilateral decisions the 
Agency is making in what, we would argue, is a very hasty fashion. The 
rulemaking should address the broader policy issues wisely, within 
statutory authority, and do so effectively and with clarity.
    I am not the first person to note for this subcommittee that as a 
Nation we have made substantial progress in cleaning up our waters. The 
progress has not been easily accomplished, however. It took 25 years 
and a significant investment of resources by the Federal Government, 
certainly by the States and local government, and especially from the 
private sector. As a company with many activities regulated under the 
Clean Water Act, Florida Power Corp. is proud of our continuing 
contributions to improving water quality in the areas where we are 
located. It is an effort we take seriously. For example, at our Crystal 
River coal plant we have completed a voluntary initiative to change the 
method by which we convey coal ash. By changing from a wet to dry 
conveyance system we have eliminated two ash pond point source 
discharges. Our commitment to water quality is also why, in 1999, 
Florida Power Corporation worked hard to help the State of Florida 
develop a TMDL statute that has been proposed as a model elsewhere in 
the country.
    With 40 percent of the nation's waters still experiencing some form 
of impairment, we believe further progress is necessary. The nation's 
remaining water quality problems should be evaluated, addressed, and 
resolved. The present water quality challenges, however, are 
technically more challenging, complex and varied than their 
predecessors were. Their resolution depends heavily on better analysis, 
which in turn depends on valid and accurate data collection, an area of 
serious programmatic weakness under the Clean Water Act. Their 
resolution also requires time, an unprecedented commitment of resources 
from all stakeholders, and a flexible iterative approach that can 
accommodate changes in our understanding of aquatic ecosystems and the 
tremendous variations that occur from one waterbody to the next--even 
from one stream segment to the next. Their resolution further requires 
finding the right bridge across the gap between the improvement that we 
have gained to date and the remaining improvement that is necessary to 
meet water quality standards--when those water quality standards have 
been appropriately set.
    EPA has crafted proposed rules that make the TMDL provisions of the 
Clean Water Act the tool of choice to bridge the gap in every instance 
of water quality impairment, including cases where impairment does not 
yet exist but might at some point in the future. We understand why the 
Agency has chosen to do this. It is not only under pressure from 
numerous lawsuits for a general failure to implement the TMDL 
provisions of the Clean Water Act, but from those who are frustrated 
that from their perspective progress seems so slow.
    Yet, we would argue that State and local governments--in 
partnership with the private sector--are making important progress on 
complex water quality problems. They have been and are developing 
successful watershed strategies, which build a profound base of 
knowledge about a given watershed and rely on bottom-up, stakeholder 
driven processes to establish targets and milestones for achieving 
success. Education and voluntary measures play an important role in 
these watershed strategies.
    The most promising advances have come in the last 5 to 6 years, 
despite a decline in Federal funding. For example, in Florida, the 
Tampa Bay estuary program is a voluntary program involving point and 
non-point sources to reduce nitrogen loadings in the Bay. Also, 
Florida's water management districts have developed Surface Water 
Improvement and Management (SWIM) Plans, which are a comprehensive 
watershed planning tool to resolve Florida water quality problems. 
These programs are in addition to existing regulatory tools such as 
individual permits, best management practices, antidegradation 
policies, and other traditional pollutant reduction measures. 
Successful voluntary programs, like the Chesapeake Bay program, are 
being conducted elsewhere in the country.
    We think successful watershed strategies will continue to emerge at 
the local level. They will do so not because of any particular Federal 
hammer but because of a slow but steady alignment between public 
values, better knowledge and evolving stakeholder commitment.
    The total maximum daily load provisions have been part of the Clean 
Water Act since it was enacted in 1972, when the view of water quality 
problems was quite different from today. The few stakeholder groups who 
generally support the thrust of EPA's rulemaking have argued the 
proposed rules are necessary because the States have fallen down on the 
job. Until recently, however, the States rightly focused their 
attention on primary or first tier issues of concern. They are now 
moving forward to fulfill their TMDL obligations. Consent decrees and 
court orders that impose unrealistic deadlines are making the challenge 
next to impossible--at least to do right. Furthermore, EPA is not 
helping when, at the very moment the States are moving forward, it 
proposes a sweeping rewrite of the program, including many new 
interpretations of the existing requirements.
    We believe that TMDLs can be a useful tool to improve water 
quality. For one thing, they can establish a clear, quantitative water 
quality target by defining the total amount of a pollutant that can be 
discharged into a water and still have that water meet water quality 
standards. In doing so, they can be helpful to States in the exercise 
of other programmatic authorities under the Act, such as Section 319 
for agriculture and Section 303(e), which defines the States' 
continuing planning process. We don't believe, however, that Congress 
intended the TMDL provisions to be the central mechanism for 
coordinating and resolving all water quality problems or for 
implementing watershed management. We worry that, as configured, the 
EPA proposals will be an impediment to further development of 
successful watershed strategies.
    The most successful watershed strategies are largely--though not 
exclusively--non-regulatory in nature. They use education, funding, 
flexibility on timing, and consensus-building stakeholder processes to 
win voluntary reductions to achieve water quality objectives. Even 
though they may take more time than regulatory approaches to initiate, 
the strategies are successful because not only do they gain the needed 
pollutant reductions, they win the hearts and minds of the stakeholders 
brought to the table during the process. More importantly, they are 
successful because they allow a State to move forward on difficult 
water quality problems in the face of uncertainty. This is because 
costs on stakeholders are not imposed from the top, but are undertaken 
voluntarily--often at the stakeholder's own initiative--to solve a 
problem perceived collectively, even though the problem and its causes 
may not yet be fully understood.
    Successful watershed strategies require both regulatory and non-
regulatory approaches, and it makes a lot of difference how these two 
approaches are combined. EPA's proposed rules, with their mandated load 
allocations, implementation plans as a formal part of the TMDL, and 
approval processes open to lawsuit, establish a heavily regulatory 
watershed approach. Even if the Agency grafts into this structure an 
accommodation for voluntary initiatives, as it talks about doing, it 
will still be imposing a regulatory approach that loses the best 
features of today's on-the-ground successful watershed strategies. As 
significant, the scope and mandates of the program defined by EPA and 
the extraordinary workload it will impose on the States have the 
potential to crush any voluntary watershed strategies and may make it 
impossible for them to co-exist along side the newly configured TMDL 
program. While the Clean Water Act's TMDL provisions were developed in 
a different era, EPA's all-inclusive and prescriptive interpretation of 
them makes them particularly ill-fitting, unworkable, and 
anachronistic.
    In Florida, we are committed to using TMDLs as effectively as 
possible. Florida has over 700 waters listed under Section 303(d). The 
data used for listing these waters was highly variable and in many 
cases of questionable quality and accuracy. Furthermore, existing 
Federal TMDL regulations provide little guidance to States on how to 
move through the TMDL process. As a consequence, in 1999, Florida 
legislators, legislative staff, agency officials, regulated interests, 
and environmental groups dedicated enormous amounts of time and energy 
to the development and enactment of legislation intended to facilitate 
compliance with the TMDL requirements of Section 303(d).
    Together, we set out to develop a statute that would be good law 
and guidance for implementing Section 303(d), consistent with 
principles of due process and good science. We sought to incorporate 
stakeholder safeguards into the process for listing and TMDL 
development. We sought a more equitable basis for delisting waters and 
an approach that would not lead to an inequitable burden on any one 
category of sources. We also tried to ensure the program would be 
scientifically based, use data that are valid and credible, and set 
priorities based on State, regional and local factors. The Florida 
statute lays out the process to be used in making both listing 
decisions and for setting priorities. The State Department of 
Environmental Protection sets the priorities and schedules based on 
basin assessments and using data that have been assembled according to 
a specific set of criteria. This process involves broad stakeholder 
input, which allows for priorities to be set in consideration of a 
variety of factors, many of which are site specific. These decisions 
are best made at the State or regional level, not by the EPA.
    In developing the statute, EPA Region IV was consulted and their 
comments addressed through amendments to the proposed legislation. 
Based on EPA's comments, it was understood that Florida's new TMDL law 
met Federal requirements. EPA, however, later entered into a consent 
decree that had the effect of undermining key features of Florida's 
1999 legislation. In particular, the Agency committed to a Federal 
usurpation of the Florida Department of Environmental Protection's 
activities in the event that the State fails to comply with overly 
ambitious deadlines. The problem is the deadlines, which are 
unattainable under Florida's Administrative Procedures Act. Unrealistic 
deadlines are setting up Florida to fail, with the result that the EPA 
will be responsible for developing the TMDLs on Florida's listed 
waters.
    Florida nevertheless is proceeding in a good faith effort to 
develop the necessary implementing regulations for the program. Now, at 
a critical juncture, EPA's proposed regulations threaten to change the 
essential features of the Federal program. If the proposed regulations 
are finalized in their current form, much of Florida's 1999 legislation 
will be rendered obsolete. From a Florida perspective, EPA's initiative 
to transform the TMDL program, at the exact moment when Florida and 
other States are intensifying their efforts to implement the existing 
program, is unjustified by any deficiencies in the existing program or 
environmental policy considerations. Governor Racicot of Montana raised 
the same issue in his testimony a few weeks ago before this 
subcommittee. David Struhs, Secretary of Florida's Department of 
Environmental Protection, also made these same points in a letter to 
Administrator Browner on January 19, 2000. He further stated that the 
State of Florida opposes the proposed rules as:

          ``needlessly bureaucratic, trapped in an archaic regulatory 
        framework, loaded with unrealistic demands and completely 
        unfunded. EPA needs to reconsider the entire proposal and 
        initiate renewed efforts to work with the States to create a 
        viable approach, especially to address non-point source 
        pollution.''

    We agree, the goal should be to strengthen, rather than compromise, 
State programs. Mr. Chairman, I would like to ask that Secretary 
Struh's letter be included in the record of this hearing.
    We have serious concerns with the proposed rules. I would like to 
outline our specific concerns now.

                                 TIMING

    I understand that in testimony before this subcommittee, Mr. Chuck 
Fox, EPA's Assistant Administrator for Water, has indicated that the 
Agency intends to finalize the proposed rules by June 30, 2000. Mr. 
Chairman, we hope the Agency can be prevailed upon to take the time to 
get this most important rulemaking right. The Federal Advisory 
Committee Act (FACA) TMDL Committee looked at the issue for several 
years to produce their recommendations. EPA then considered the FACA 
Committee's report for over a year. In many key and significant areas, 
the Agency's proposed rules depart from the FACA recommendations. Yet, 
the public has had little time to evaluate these proposals, which are 
complex and changes dramatically the approach for implementing the 
Clean Water Act. Furthermore, a quick review of the 30,000 comments 
reveals areas of the proposed rules that need a lot more work. For 
example, the proposals do not begin to address how the revised TMDL 
program will integrate with decisions made under other environmental 
statutes such as Superfund or the Endangered Species Act. If the June 
30--or even a late summer deadline--is to be met, we do not believe 
that EPA can credibly address these and the other serious concerns 
raised by the thousands of comments.
    The Agency is under no obligation to propose rules, nor is it under 
any obligation to so by a certain date. This is a discretionary 
rulemaking, which we believe will take more time to do well if it is to 
achieve the Agency's stated goals of bringing more consistency, 
clarity, and effectiveness to the TMDL program. We hope the 
subcommittee, by whatever means necessary, can prevail on the Agency to 
take the time to do the rulemaking right. A hastily prepared rule will 
invite litigation and retard water quality progress.

                                LISTING

    While we approve of EPA's effort to require that States develop 
through a transparent process--the methodologies they will use to 
identify and list streams under Section 303(d), we think the Agency 
should be required to provide feedback to the States on their proposed 
methodologies. Instead, EPA proposes to reserve its option to object to 
a State's list based on EPA objections to the listing metholodoloy. A 
State's methodology should not then be used later as a basis for EPA 
disapproval of a State list if the Agency's concerns with the 
methodology were addressed. We also strongly believe that EPA has set a 
threshold for listing of waters under Section 303(d) that is too low. 
The quality and type of data that EPA would have the States rely on 
cannot ensure the credible and accurate identification of water 
impairments, let alone the development of sound TMDLs. For example, EPA 
encourages the use of ``evaluated data,'' which can be something as 
simple as a drive-by windshield inspection or looking upstream and 
seeing two farms and a plant and concluding there must therefore be 
impairment. EPA also requires the listing of waters based on fish 
advisories. We consider these to be wholly inappropriate, inasmuch as 
fish advisories are developed for a totally different purpose and 
through varied State processes, which most often are not adequate to 
support regulatory actions. In their current form, we do not think fish 
advisories are an appropriate surrogate for State water quality 
standards when listing a stream for impairment.
    From here on out, the listing of a water under Section 303(d) will 
have major regulatory and economic consequences. It will be analagous 
to designating an area as ``non-attainment'' under the Clean Air Act. 
Growth is likely to be curtailed, if not halted, on or upstream of a 
listed water. If growth is not curtailed directly, it definitely will 
be affected indirectly when lenders hesitate to provide capital for 
business, commercial or other development on or upstream of a listed 
water. I'd like to point out that since a good many listed waters are 
in urban areas, redevelopment efforts will be most adversely affected. 
It may not be too much of a stretch to think of the impact of listings 
under the Superfund National Priorities List when thinking about the 
impact of Section 303(d) listings.
    Consequently, the Agency has the obligation to insist on the use of 
high quality, monitored data for listing and TMDL development. These 
data should be collected pursuant to a State's quality assurance, 
quality control protocols. Before incurring the direct and indirect 
adverse consequences of a listing, EPA and the States should be sure 
that waters proposed for listing are truly impaired.
    EPA should also not convert the 303(d) list into the comprehensive 
inventory of all water quality problems, as the Agency has proposed. 
The statute gives that role to the Section 305(b) reports. So-called 
``threatened'' waters, waters impaired by pollution (as opposed to 
pollutants), and waters impaired by unknown causes can and should be 
managed under Section 303(e). Legal issues aside, other problems, such 
as impairment from air deposition or flow characteristics are not 
suitable for TMDL development. The science for air deposition is at 
such an early stage that there is simply no way to identify the 
specific impacts that particular air sources have on particular 
waterbodies, nor to attribute an impairment problem back to a specific 
emissions source. Furthermore, air deposition cannot jurisdictionally 
be reached by a State developing a TMDL. Where a valid impairment by a 
pollutant comes from sources that include air deposition, the 
impairment needs to be addressed through non-traditional methods. We 
are not far enough along to know what the appropriate and effective 
legal, technical, and policy elements of such a non-traditional method 
would be. I understand that this is not a satisfying answer for the 
subcommittee, but it underscores our concern about EPA's approach to 
this rulemaking, which prematurely seeks to craft a framework for this 
unique problem.
    Just as important, it is imperative that a workable procedure for 
delisting waters that are not truly impaired be incorporated into the 
proposed regulations. Within the next 15 years, States are required to 
develop upwards of 40,000 TMDLs for the 20,000 waters currently on the 
States' lists. It is common knowledge that many of those waters do not 
belong on the lists. They were placed there based on inadequate or no 
data, or old and poor quality data; or they simply were put on the 
Section 303(d) lists because they were on another Clean Water Act list, 
such as the Section 319 list. Setting aside for the moment the resource 
implications of these statistics, there should be a straightforward 
procedure for taking waters off the list and for addressing, in a 
prioritized fashion as determined by the States, only those waters that 
are clearly impaired. In light of the potentially crippling regulatory 
consequences for permittees and the impacts on growth that will flow 
from a listing, which I will discuss in a moment, 4 or 5 years is 
simply too long to wait to get a water off of a Section 303(d) list if 
it should not have been listed. The Florida statute provides for 
immediate delisting of waters when data comparable to the data required 
for listing a water demonstrates that the water quality standards are 
being met.

                          REDEFINITION OF TMDL

    The proposed rules expand the elements of a TMDL. Under the 
proposals, a TMDL is more than a number defining the total amount of a 
pollutant that can go into a water and still have it meet water quality 
standards. It is even more than the ``pollution budget'' discussed by 
the Agency. Under the proposed regulations, a TMDL will now include an 
implementation plan that lays out the most basic on-the-ground, local 
decisions about who will do what, when, where, and how to implement the 
TMDL. As a consequence, the proposed changes will dramatically expand 
EPA's regulatory reach, since the EPA will approve the implementation 
plans. Endangered Species Act Section 7 consultations with the Federal 
wildlife agencies on all these detailed decisions may also be triggered 
if an endangered species might possibly be affected. EPA''s 
``implementation plan'' proposal cannot be supported by any language in 
Section 303(d) of the Clean Water Act.
    A reading of the proposed rules and statements by Agency officials, 
including those of Mr. Fox in hearing testimony, indicates that the 
Agency believes it has laid out a TMDL framework that makes the program 
an effective watershed management tool, preferred over the Section 
303(e) continuing planning process presently used by the States. Yet, 
in prescriptively redefining the elements of a TMDL, EPA has devised a 
program that is a more rigid, inflexible framework--not at all like the 
State watershed initiatives that are proving so successful on the 
ground. Once approved, because of all the required Federal agency 
approvals, a TMDL will be very difficult to modify even if a change is 
needed to improve water quality or correct misdiagnosis of a problem or 
the solutions used to solve a problem. We also worry that the framework 
sets up a confrontational, zero-sum approach to water quality that is 
antithetical to the current consensus-based watershed approaches. The 
Superfund statute has often been regarded as a failure because, among 
other reasons, it has imposed extraordinarily high transaction costs on 
all parties to the clean up decisions. Recent TMDL consent agreements 
and the TMDL framework established by the proposed rules have the 
potential to also impose extraordinarily high transaction costs.

                      INTERIM RESTRICTIONS/OFFSETS

    During his testimony before the House Water Resources Committee on 
February 10, Mr. Fox articulated a policy objective that we whole-
heartedly support. We agree with Mr. Fox that an effective TMDL program 
should be structured to encourage and allow for the most cost effective 
pollutant reductions to be achieved. In most instances, these 
reductions will come from the sources whose contribution of loadings 
will be less expensive to reduce. We do not agree with Mr. Fox when he 
asserts that the proposed rules further that policy objective. Our 
concern becomes even more pronounced when we evaluate some of the 
decisions being made on the ground today or in unrelated policy 
statements by EPA.
    Under the proposed rules, new or significantly increased 
dischargers to impaired waters face offset requirements as a 
prerequisite to obtaining NPDES permit approvals. These provisions, we 
believe, are likely to be unworkable. On many stream segments, an 
offset may not be available. On others where it might be available, EPA 
has structured the offset in a way that becomes a powerful disincentive 
for the NPDES permittee to enter into an offset arrangement with 
another party. If the other party fails to perform, not only does the 
NPDES permittee have its permit reopened, the permittee becomes liable 
for civil and criminal penalties for violation of its permit. The 
likely result will be to drive new business or commercial and 
residential development to pristine areas, rather than encourage 
redevelopment along waters that are now listed as impaired.
    Does this mean that we believe that unfettered new and significant 
increases of discharges should occur on impaired waters? Of course not. 
Instead, we think that States are in the best position to make 
decisions about how to manage an impaired water for growth. EPA should 
not prescribe rules that prejudge the outcome of a TMDL.
    We are concerned that such prejudgments are taking place on the 
ground right now. In unrelated policy statements, EPA has advocated an 
outright ban on the use of mixing zones on impaired waters. Some EPA 
regional offices are pushing point source dischargers to zero for 
certain substances on an impaired water prior to TMDL development. 
These decisions are being imposed regardless of whether the action will 
make any significant contribution to meeting water quality standards 
and also regardless of the sometime exorbitant costs. The Clean Water 
Act's anti-backsliding provisions are not likely to allow for a 
relaxation of the interim measures when a TMDL is later completed.

                        WATER QUALITY STANDARDS

    Mr. Chairman, we have two primary concerns in this area. First, as 
you pointed out during your first TMDL hearing, in some cases, water 
quality standards have been set that, for very good reason, cannot 
always be met. The use attainability analysis that must be completed to 
change a State water quality standard for a particular water is 
exceedingly difficult to complete. Obtaining EPA approval is also 
extremely difficult. EPA makes no accommodation for this in its 
rulemaking. Nor does EPA's proposal accommodate the moderating 
provisions such as mixing zones and variances.
    Second, EPA aggravates the first problem by allowing for the 
listing of streams based on noncompliance with narrative standards for 
which there is no numeric translator. In other words, there is no 
objective measure for the State or a regulated entity to use for 
deciding when the standard is not being met. We believe that measures 
of impairment should be objective and quantifiable. Current regulations 
and past court decisions support that view. We fear that by encouraging 
the use of narrative standards as a basis for listing, the proposed 
rules will lead to more subjective, ad hoc decisionmaking under the 
Clean Water Act.

                               RESOURCES

    Mr. Chairman, Florida has over 700 listed streams for which it must 
complete TMDLs. With 20,000 waters currently listed nationwide, 
requiring 40,000 TMDLs, the States will have to develop one TMDL a week 
for the next 15 years to get the job done, all of which EPA must 
approve. The proposed rules will increase the workload by expanding the 
basis for listing waters under 303(d) and redefining the TMDL to 
include an implementation plan. The rulemaking is also likely to 
increase the need for individual permits by making general permits much 
more difficult to obtain on an impaired water. EPA already admits to a 
substantial backlog in NPDES permit reissuance, which they expect will 
increase over the next 2 years.
    Yet, Congress and the subcommittee have no good idea about how much 
this will cost the Federal Government, State and local governments, or 
the private sector. EPA has decided that either their proposals do not 
require these analyses, an interpretation that has been disputed by the 
States and various stakeholders, or has performed an analysis of cost 
impacts to the States that cannot bear scrutiny. The proposed revisions 
are substantial enough to warrant a detailed analysis of the costs of 
the entire program and the revisions, an analysis that should be peer-
reviewed and available for public comment prior to the rules being 
finalized. Under any scenario, increased Federal funding will be needed 
for States and local governments. We believe, however, that it is 
possible to craft a rule that improves the TMDL program and does so 
cost-effectively.
    In conclusion, Mr. Chairman, our lawyers strongly believe that EPA 
lacks the statutory authority to do much of what they are proposing. 
Beyond the legal arguments, we hope the subcommittee will consider 
whether EPA's proposal really makes good policy and whether it can work 
in practice. Part of working in practice is whether it will achieve 
real and genuine environmental benefits. The other part of ``in 
practice'' is will it achieve those benefits in a way that allows the 
continuing power of our economy to be harnessed and used to support the 
education, employment, and welfare of all Americans. We value the 
environmental progress that we've made and want to protect it. We think 
the way to go about that is a through a flexible, stakeholder-based, 
watershed approach, which is not achieved by these proposed rules. We 
believe the proposals fail to achieve the twin elements above.
    We thank you for your oversight efforts and hope the subcommittee 
will take the following important steps. First, we hope the 
subcommittee will undertake to prevail upon EPA to take the time to get 
the rule done well and right, and to not let political exigencies drive 
the timetable. Getting it done right means taking a more focused 
approach to the listing of waters under Section 303(d) and ensuring 
that high quality, monitored data is used for both listing and TMDL 
development. That begins with establishing objective, numeric water 
quality standards. It means ensuring that flexible, bottom-up watershed 
approaches continue to develop by not using the TMDL process to 
override the Section 303(e) continuous planning provisions of the Clean 
Water Act. It means assuring that due process is accorded stakeholders, 
that States retain full authority to equitably apportion responsibility 
for pollutant reductions, and that EPA does not prescriptively prejudge 
the outcome of a TMDL.
    Second, we would encourage the subcommittee to consider stepping in 
to ensure adequate funding for monitoring and data collection by the 
States and to require that the data used for listing and TMDL 
development be high quality monitored data. A serious improvement in 
our knowledge in this area can go a long way to improve on the ground 
decisionmaking. This effort should not be left entirely in the hands of 
the Agency, but should be developed jointly with the States or, better 
yet, with States in the lead, after input by stakeholders.
    Third, I believe it was Senator Wyden during the last hearing that 
raised the issue of State flexibility and one-stop shopping. We believe 
it would be helpful if the subcommittee would clarify that States have 
the authority to evaluate and conclude that current watershed 
strategies, habitat conservation plans, and environmental decisions 
made under other environmental statutes are adequate to meet water 
quality standards and therefore do not have to be reopened under the 
TMDL program.
    Fourth, we would encourage the subcommittee to seriously review the 
resource needs of State and local governments and the costs likely to 
be imposed as a result of the TMDL program on them and on the private 
sector. You will then be better able to evaluate the merits of the 
Agency's proposals and appropriately address funding needs.
    Thank you Mr. Chairman.
                                 ______
                                 
                    Department of Environmental Protection,
                                 Tallahassee, FL, January 19, 2000.
Ms. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
    Dear Ms. Browner: This letter is in response to the U.S. 
Environmental Protection Agency's proposed revisions to the Federal 
Total Maximum Daily Load Regulations (40 CFR Part 130), the National 
Pollutant Discharge Elimination System Program (40 CFR 122, 123, and 
124), and the Antidegradation Policy (40 CFR 131), as published in the 
Federal Register on August 23, 1999. We appreciate the opportunity to 
review the proposed regulations and have endorsed a wide range of 
specific comments. Given the scope of our comments and serious concerns 
about the proposal, I will summarize the key points in this cover 
letter.
    First, we fully support the principle that more can and should be 
done to control nonpoint sources of pollution. However, the proposed 
revisions represent a significant, unwarranted expansion of the 
regulatory approach to this problem. A plain reading of the Clean Water 
Act, supported by numerous Federal court decisions, makes clear that 
section 303(d) is applicable to waters where point source controls are 
not adequate to maintain water quality standards. Indeed, section 319 
of the Act specifically gives the responsibility for development of 
nonpoint source controls, including determining the need for regulatory 
programs, to the States.
    EPA should reconsider the expanded regulatory approach if only for 
practical reasons. There are simply too many potential nonpoint sources 
of pollution (silviculture alone represents more than nine million 
private landowners) to address using traditional regulatory techniques. 
Furthermore, there is too much uncertainty in the relation between 
individual nonpoint sources and their specific impact on downstream 
receiving water quality to support a water quality-based approach. 
States certainly will not be able to allocate loading to individual 
nonpoint source discharges or monitor the effectiveness of individual 
pollution control activities.
    For these reasons, Florida is a strong proponent of a voluntary, 
technology-based approach to nonpoint source control. In fact, we have 
formally adopted this approach in landmark State TMDL legislation (the 
Florida Watershed Restoration Act, Section 403.067, Florida Statutes), 
which prescribes a comprehensive voluntary strategy for implementing 
the nonpoint source component of TMDLs. The law acknowledges that many 
nonpoint sources are outside of our regulatory authority and 
establishes a viable alternative that includes incentives for nonpoint 
sources implementing best management practices. We currently are 
working with various industries and the Florida Department of 
Agriculture and Consumer Services to implement these alternatives. 
Securing industry cooperation is not easy but is the only way we will 
be able to deal effectively with nonpoint source pollution--and it is 
bearing fruit. In the Suwannee River basin, around Lake Okeechobee, and 
elsewhere we are arriving at cooperative strategies to clean up 
Florida's waterways.
    Clearly, the TMDL program has a crucial role to play in point 
source and nonpoint source pollution control by providing water quality 
targets that both sources must work to achieve. However, implementing 
the nonpoint source components of TMDLs is best achieved through a 
combination of regulatory and non-regulatory efforts. Water quality 
objectives are most rapidly brought about by consensus, with regulators 
cooperating closely with stakeholders to develop best management 
practices and other water quality protection measures while accounting 
for the practical and financial limitations of these stakeholders. We 
believe the prescriptive approach outlined in the proposed revisions 
would prove ineffective and serve only to discourage partnerships and 
cooperation. In addition, the revisions seriously undermine the roles 
of State and local governments in watershed management. While we 
understand EPA's concerns about the various lawsuits that have plagued 
the TMDL program, the proposals aimed at backstopping State permitting 
and TMDL development efforts are counterproductive.
    A second key concern is that EPA has not adequately accounted for 
the costs associated with implementing the proposed revisions. As 
required by the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act, the Federal Unfunded 
Mandates Reform Act, and Executive Order No. 12866; EPA should conduct 
a full accounting of the costs to implement the proposed revisions, 
including costs to the private sector and State and Federal 
Governments. We recognize that EPA need only address the incremental 
costs of these revisions rather than the costs of the TMDL program as a 
whole. However, the proposed requirement to develop implementation 
plans alone will cost States and local governments tens of millions of 
dollars and the proposed expansion of regulatory authority to 
silvicultural activities will increase costs to the private sector by 
even more. If the incremental costs for Federal agencies (both the USDA 
and EPA) also are included, costs would easily exceed $100 million 
annually. Both Congress and the States deserve a thorough, accurate 
evaluation of the costs of the proposed revisions before final 
decisions on these regulations are made. EPA must recognize States as 
full partners in water quality protection and focus on funding 
strategies to support State programs.
    Federal funds have been critical to controlling point source 
pollution in the past and will be even more critical to nonpoint source 
pollution control. We urge the development of a substantive funding 
program to underwrite the planning, design, and construction of 
nonpoint source projects and the development and implementation of 
effective management practices. We agree with the State of Georgia that 
it is time to place the financial resources along with responsibilities 
for water resource protection in the hands of local government.
    Our third fundamental concern is that the proposed revisions add 
many unrealistic expectations to the TMDL program, the rationale for 
which is not clear. The State of Florida fully understands its 
responsibilities to develop and implement TMDLs in a timely manner. 
However, the proposed revisions create a process-laden TMDL program 
that is not workable, goes well beyond the requirements of Section 
303(d), and will impede ours and other States' efforts to improve water 
quality. A prime example of these unreasonable expectations Is the 
inclusion of implementation plans as a required element of TMDLs. 
States simply cannot develop Implementation plans with each TMDL in the 
proposed 15-year timeframe. Furthermore, the required scope of 
reasonable assurance for nonpoint source control is not possible given 
the limited funding for nonpoint source activities and projects. While 
we agree that implementation plans are important, they should be 
developed separately from, and subsequent to, TMDL development. 
Considerable additional time and creative effort will be needed to 
reach consensus on the most effective set of options to achieve water 
quality standards in a basin. EPA should give the States at least 18 
months after TMDL approval to develop an implementation plan. This time 
also would give local governments and private entities the time needed 
to secure funds for restoration activities.
    In closing, the State of Florida Department of Environmental 
Protection opposes the regulations as drafted. They are needlessly 
bureaucratic, trapped in an archaic regulatory framework, loaded with 
unrealistic demands, and completely unfunded. EPA needs to reconsider 
the entire proposal and initiate renewed efforts to work with the 
States to create a viable approach, especially to address nonpoint 
source pollution. Florida has developed and adopted in statute a 
program to restore impaired waters that parallels the best elements in 
the proposed regulations. EPA should modify the regulations based on 
our comments and those of our partner States in order to strengthen 
State programs rather than compromise them. As written now, the 
regulations cannot be implemented and will hinder the restoration of 
our nation's waters.
            Sincerely,
                                           David B. Struhs,
                                                         Secretary.
                                 ______
                                 
  Statement of Norman E. LeBlanc, Chief, Technical Services, Hampton 
 Roads Sanitation District, Virginia Beach, VA, Presented on Behalf of 
           the Association of Metropolitan Sewerage Agencies
                              introduction
    Mr. Chairman, Senator Reid, and members of the subcommittee, my 
name is Norm LeBlanc. I am Chairman of the Water Quality Committee of 
the Association of Metropolitan Sewerage Agencies (AMSA). I also have 
served on the front lines of the campaign to clean up our nation's 
waters for nearly 30 years, the last 20 years managing the 
environmental and Clean Water Act permitting and compliance programs 
for the Hampton Roads Sanitation District in Southeastern Virginia.
    I greatly appreciate the opportunity to share with you today the 
experiences of the wastewater treatment community with regard to the 
Clean Water Act and, more specifically, the Total Maximum Daily Load 
(TMDL) program. AMSA represents the interests of more than 240 publicly 
owned treatment works (POTWs). AMSA's members treat 18 billion gallons 
of wastewater every day and provide service to the majority of the 
United States' sewered population. In addition to their primary 
responsibility for treating the Nation's domestic and industrial 
wastewater, member agencies play a major role in their local 
communities, often leading watershed management efforts, promoting 
industrial/household pollution prevention and water conservation, as 
well as developing urban stormwater management programs.
    AMSA's members hold National Pollutant Discharge Elimination System 
(NPDES) point source discharge permits under the Clean Water Act. Many 
of AMSA's members throughout the country are located on water bodies 
that have been listed as ``water quality limited segments'' under 
Section 303(d) of the Clean Water Act. As major point source 
dischargers, AMSA members have been active participants in EPA's 
process to develop and implement the TMDL program. An AMSA member 
served on EPA's Federal Advisory Committee on TMDLs. In fact, this 
issue is so important to us, that AMSA is now an intervenor/defendant 
in an important TMDL court case in California Pronsolino v. Marcus.
    AMSA supports a revised TMDL program that would encompass both 
point and nonpoint sources of impairments to our country's water 
bodies. We also support requirements for implementation plans and for 
an open public participation process, as they are essential components 
of a successful TMDL program.
    During the past 30 years, point sources of water pollution--
wastewater treatment plants, industry, and others--have been meeting 
the challenges of the Clean Water Act to achieve our national clean 
water goals. The investment in wastewater treatment has revived our 
rivers and streams, and the Nation has experienced a dramatic 
resurgence in water quality. Point sources are strictly controlled by 
the Clean Water Act. Discharges without permits are punishable by fines 
or imprisonment, and wastewater quality is continually monitored and 
reported to State and Federal regulators. A combination of tough laws 
and regulations along with Federal, State and local dollars has 
resulted in the water quality gains of the past 30 years. However, 
according to the U.S. Environmental Protection Agency (EPA) 40 percent 
of our waters still do not meet water quality standards--due largely to 
nonpoint sources of pollution.
    While point sources of water pollution are easily identified and 
highly regulated facilities, nonpoint sources are subject to only 
limited accountability and controls. Agriculture, according to EPA, is 
responsible for degrading 70 percent of the country's impaired river 
miles and half the impaired lake acreage. Nonpoint source pollution 
closes beaches, contaminates or kills fish, destroys wildlife habitat 
and pollutes drinking water. The current systems to control nonpoint 
sources include a wide variety of State and Federal regulations that 
are largely incentive-based, voluntary programs. For the environment 
and the economy, we must stop the flow of nonpoint source pollution 
into our nation's rivers and streams by making these sources 
accountable for their fair share of pollution.
    As veterans in the water pollution field, we are sympathetic to 
gaps in our economic and scientific data, lack of funding and the 
absence of a consistent, comprehensive mechanism for monitoring and 
regulating those responsible for nonpoint source pollution. However, 
point sources in Virginia, or Idaho or New Hampshire--and around the 
country--can no longer carry the burden alone. POTWs must be joined by 
others in their communities--the farmers and ranchers, foresters and 
miners--in a renewed commitment to clean up impaired waterbodies. This 
effort to achieve water quality goals must include fair share 
allocation of pollution reduction and enforceable regulations. Let me 
reiterate, AMSA recognizes the concerns of the nonpoint source 
community with respect to implementing TMDLs and we fully support the 
need for flexible, cost-effective and reliable management practices. We 
also know additional data is needed, as is increased funding to support 
these watershed efforts. However, true water quality gains can only be 
realized if nonpoint sources are held accountable for their share of 
water pollution. Remember that the pollutant load from each nonpoint 
source that is not controlled must be reallocated to every other source 
within the watershed.
    The inclusion of nonpoint sources of pollution is even more 
critical considering the amount of money local governments continue to 
expend in order to meet tough new Clean Water Act requirements. In 
addition to specifying treatment requirements for domestic, commercial 
and industrial wastewater, the Act requires cities, towns and counties 
to reduce the impact of wet weather storm flows and to bring impaired 
waters into compliance with State and Federal water quality standards. 
As POTWs endeavor to finance and meet the latest water quality goals 
aimed at reducing impairments caused by combined sewer overflows, 
sanitary sewer overflows and storm water events, they also face the 
enormous costs associated with maintaining our current wastewater 
infrastructure.
    Although it is hoped that responsibility for attaining water 
quality standards and requisite pollutant loads will be equitably 
allocated among point and nonpoint sources of pollutants, POTWs are 
concerned that a revised TMDL program's additional restrictions on 
point source discharges are likely to be the most heavily weighted part 
of the TMDL equation. Failure of a waterbody to meet water quality 
standards, for any reason, will inhibit the ability of municipal or 
industrial point sources to expand and grow. If States ultimately are 
not authorized to develop TMDLs that require load reductions from 
nonpoint sources, EPA and the States will be forced to rely exclusively 
upon point sources to secure the pollutant load reductions necessary to 
meet water quality standards. Such load reductions would be achieved 
through the imposition of stricter effluent limitations on NPDES permit 
holders, including POTWs. Cities, towns, counties, and AMSA members 
would then be forced to find and spend enormous sums of money on 
additional controls that will not, in many cases, attain water quality 
standards.
              positive aspects of epa's proposed tmdl rule
    AMSA has identified some positive aspects of the TMDL proposal that 
should be retained in the final rule. These provisions include the 
imposition of equitable controls on both point and nonpoint sources, 
the requirement to include implementation plans as part of a TMDL, and 
the requirement for States to develop methodologies for listing and 
priority ranking.
    The proposed TMDL rule makes it clear that the control and 
reduction of loadings from nonpoint sources is a critical component of 
the TMDL program. Specifically, AMSA recommends that proportionate 
share responsibilities be adopted in the allocation of pollutant 
loading reductions. AMSA also recommends that the TMDLs for blended 
waters (those waterbodies impaired by both point and nonpoint sources) 
make clear that compliance schedules for both point and nonpoint 
sources are implemented in parallel.
    AMSA supports EPA's proposed requirement that States publicly 
develop a methodology for evaluating all existing and readily available 
data and information in the listing and priority ranking process. 
Dischargers have often questioned the reasons for listing waterbodies 
and the proposal will allow local stakeholders, who typically are in a 
good position to provide data and input into the process, to assist in 
the proper application of data and scientifically valid methodologies.
    AMSA also supports requiring implementation plans for TMDLs. 
However, we believe that States should first be required to review and 
assess the attainability of the water quality standards for an impaired 
waterbody prior to developing a TMDL. Once TMDLs are established, 
implementation plans are critical if the TMDLs are to accomplish their 
objectives. Without such plans, TMDLs become mere exercises in 
mathematical modeling, ending up as part of the water quality planning 
process, and never reaching the administration and enforcement stage. 
If States fail to implement the plans, EPA should have the authority to 
enforce TMDL implementation plans on all sources.
    It is also critical that sufficient data of appropriate quality and 
coverage be available as a basis for TMDL listing and development. 
Considering the implications, it is imperative that TMDLs be developed 
in a rigorous and scientifically sound manner. The proposed regulations 
do not specify minimum standards for the quality and quantity of data 
that is necessary to list waters or establish TMDLs, wasteload 
allocations (WLAs) and load allocations (LAs). We believe EPA should 
require that data used in the TMDL process meet certain standards. 
Neither EPA's current nor proposed regulations and guidance specify 
minimum data quality or quantity requirements for listing waterbodies 
as impaired or for establishing TMDLs. Currently, this lack of guidance 
has led to the listing of many impaired waters based upon outdated and 
limited data (e.g., one data point) or very poorly developed TMDLs. 
Minimum data requirements for the listing of impaired waterbodies and 
the development of TMDLs must be established.
    AMSA fully supports all of the Proposed Regulation's public 
participation provisions, found at Sec. 130.37. The public 
participation provisions will open up the TMDL process to the benefit 
of all of the stakeholders. It will allow the public and dischargers to 
understand the details of how the TMDL was developed.

                   CONCERNS WITH EPA'S TMDL PROPOSAL

    While supportive of some of EPA's proposed changes, AMSA does have 
major concerns with the overly broad approach EPA has chosen for 
listing criteria and the expansion of authority in the permit issuance 
process. AMSA believes EPA's proposal inappropriately expands its 
authority to require listing of waters under Sec. 303(d) for conditions 
such as: exceedences of drinking water Maximum Contaminant Levels 
(MCLs), threatened waters, fish advisories, antidegradation, and 
pollution. Listings should be limited to impairments caused by 
pollutants from either point or nonpoint source water discharges that 
are controllable under the Clean Water Act, and should recognize that a 
``comprehensive accounting of all water bodies'' should be accomplished 
under Sec. 305(b) rather than Sec. 303(d) in accordance with 
Congressional intent. Listings must also be based on properly 
promulgated water quality standards with appropriate public review and 
comment.
    We believe EPA also has expanded its statutory authority in 
requiring the listing of all waters impaired by either pollutants or 
``pollution.'' The TMDL language of the Clean Water Act at 
Sec. 303(d)(1)(A) does not authorize the listing of water bodies 
impaired by ``pollution.'' Listings are authorized where effluent 
limitations are insufficient to achieve water quality standards. 
Listings should be limited to impairments caused by pollutants from 
point and/or nonpoint source water discharges that are controllable 
under the Clean Water Act.
    The ``comprehensive accounting of all water bodies'' should be 
accomplished under Sec. 305(b) rather than Sec. 303(d). Section 303(d) 
is only one narrow tool in a much broader toolbox of remedies and/or 
solutions to water quality problems. The Clean Water Act intended for 
Sec. 305(b) to be the repository for all State water quality 
information. It not only requires the States to provide water quality 
information about all its waters but also requires them to view water 
quality problems from a broader, more holistic approach. It was 
Congress' intent that Sec. 305(b) serve as the comprehensive accounting 
of all water bodies that have water quality problems.
    AMSA also has major concerns with the proposed changes to the NPDES 
Program and Antidegradation Policy. Dischargers wishing to increase 
loadings to TMDL listed segments should not be bound to a 1.5 to 1 
offset as proposed in Sec. 131.12. The ``reasonable further progress'' 
concept helps to improve the waterbody pending TMDL completion; the 
offset requirement conflicts with that goal. Reasonable further 
progress should be encouraged and should remain as flexible as 
possible. Further, the decision as to what constitutes ``reasonable 
further progress'' should be determined by the States. States should 
have the flexibility to decide what action to take; if there is little 
impact from the increased discharge on the waterbody, studies or 
additional monitoring may be appropriate. The offset provisions in the 
proposed rule also could cause special problems in suburban areas where 
growth pressure is the greatest. Small package treatment plants could 
proliferate. These small systems would be exempt and could create new 
and unanticipated water quality problems.
    When assessing restrictions on new discharges, the regulations 
should recognize that additional loadings from a point source may or 
may not affect the impairment of uses due to the relatively low 
contribution from the point source. Therefore, any offset provision 
must be pollutant and site-specific. Furthermore, restricting offsets 
to only ``large'' POTWs or industries is arbitrary and not related to 
water quality. EPA should consider any increase less than 20 percent 
over current ambient levels to be imperceptible both analytically 
(within precision of methods) and environmentally; the size of the 
facility is irrelevant to the environment.
    Existing permit limits should remain in place until a properly 
developed TMDL is completed and approved. Unfortunately, POTWs are 
facing revised permit limits as soon as the waters are placed on the 
303(d) list--even before the TMDL process has begun. Limits should not 
be revised until the TMDL is finished and the final allocation is made. 
Municipalities and POTW operators must have a defined, long-range plan 
for improvements at the treatment plant. If permit conditions are 
changed during permit renewal prior to the completion of the TMDL, 
resources will be wasted. This is due to the possible need to begin 
construction first for the renewed permit and then again at the 
completion of the TMDL. The two construction projects that typically 
last for a few years each may not complement each other but may 
actually require the removal and installation of different equipment. 
It is essential that POTW operators have definitive long-term plans 
that they can act on efficiently.
    AMSA also is concerned over the lack of flexibility in implementing 
control measures in the proposed rules. EPA has emphasized, to the 
exclusion of all other mechanisms, the requirement that all control 
measures be implemented as NPDES permit limits. This exclusive reliance 
on permit limits fails to recognize that there may be more effective 
and less costly alternatives for implementing TMDL requirements for 
both point and nonpoint sources. While we concur that EPA needs the 
authority to impose permit limits on sources that fail to cooperate in 
the TMDL process, the imposition of limits should be considered the 
least favored option and one of last resort.
    Finally, AMSA believes that all costs of the proposed rule--to the 
Federal Government, to State and tribal governments, to local 
governments, and to point and nonpoint dischargers--must be calculated 
by EPA. EPA's estimate of the incremental annual cost of both the TMDL 
and permitting regulations of $90 million ignores the costs to develop 
TMDLs, which could be upwards of $4 billion (40,000 TMDLs nationwide at 
a conservative $100,000 each). It also ignores the costs of additional 
controls on point and nonpoint sources. In some instances, costs may be 
unquantifiably high. It is essential that the Congress and the American 
people have an accurate accounting of the costs of the TMDL program.

                         VIRGINIA'S EXPERIENCE

    Hampton Roads Sanitation District in Southeastern Virginia is an 
active partner in the Chesapeake Bay Program. This program is an 
excellent example of a cooperative, non-regulatory program that is 
successfully addressing water quality issues in a large, diverse, 
interstate watershed. The process has served as a model for determining 
the causes of water quality impairments and for providing forums on 
addressing those impairments. The non-regulatory approach of the Bay 
Program has resulted in a flexible process that allows for new 
scientific findings to be incorporated into management decisions. In 
addition, HRSD has been free to explore non-regulatory control 
strategies. These strategies cost less and can be implemented much 
sooner than if controls were implemented as NPDES permit limits.
    Unfortunately, the EPA 303(d) listing of the Chesapeake Bay for 
TMDL development is threatening the progress that we have made to date. 
Some participating sources are now questioning the wisdom of signing 
agreements with the States to build new infrastructure under the 
current non-regulatory Chesapeake Bay Program. These sources question 
whether the expenditure of their resources now will satisfy a TMDL in 
the years to come. EPA must include in their revised TMDL rule a 
mechanism for recognizing existing, successful programs like the one 
that is restoring the waters of the Chesapeake Bay. If the current 
Program is not allowed under a new TMDL rule, it will delay the 
implementation of timely, cost-effective controls and could lead to 
delays in enforceable NPDES permit limits as sources may challenge the 
basis for the permit requirements.
    I want to emphasize that EPA should have the ability to impose 
NPDES permit requirements on all contributors to water quality 
impairment, both point and nonpoint sources. The Bay's non-regulatory 
program works because there exists a firm understanding that all 
responsible parties must participate in controlling their fair share of 
pollutants in the Bay. The success of this effort is due, in part, to 
public education. However, a large part is dependent upon the 
regulatory backdrop against which the program operates. Currently, 
point sources that do not participate in the Chesapeake Bay program, 
who do not sign agreements or implement controls, are subject to the 
more costly and cumbersome NPDES permit limits. Similar requirements 
must be applicable to nonpoint sources as well, if the waters of the 
Bay are to be restored to their beneficial uses. The Chesapeake Bay 
cannot be restored unless all sources of pollutant loadings participate 
in a program. The backdrop of NPDES requirements ensures maximum 
cooperation from all parties.

                   WATER QUALITY IN THE 21ST CENTURY

    EPA's TMDL proposal marks a significant change in emphasis for the 
national water program and accelerates an ongoing trend from technology 
to water quality-based approaches to water quality management.
    With this shift in program emphasis to water quality-based 
controls, one critical aspect of the EPA proposal that is notably 
missing is a clear linkage between the TMDL rule revisions and water 
quality standards use reviews and revisions. In July 1998, EPA released 
its Advanced Notice of Proposed Rulemaking (ANPRM) on the Water Quality 
Standards (WQS) Regulation and solicited comment on the need for 
regulatory or policy changes to the water quality standards program. 
One of AMSA's main comments in response to that proposal was that many 
current water body uses were originally, and still are, inappropriately 
designated due to a lack of or deficient ``attainability'' assessments.
    The entire focus of the TMDL program is to achieve a specified 
designated use by achieving the water quality standards necessary for 
that use to exist. Many uses, and criteria to protect the uses, were 
established in the 1960's and early 1970's without much scientific 
analysis, with little or no policy debate and, certainly, without the 
regulatory consequences that exist today. They were, in essence, ``wish 
lists.'' Now that those wish lists have become a reality, officials are 
finding out that, in many cases, the designated uses of individual 
water bodies don't make any sense. Before we spend billions of dollars 
and millions of hours nationwide on TMDLs we need to ensure that our 
water quality goals--our designated uses--are both achievable and 
sensible from an economic, scientific and political point of view. 
Further, we need to review our water quality criteria and determine 
their appropriateness for the designated waterbody. That is why we 
strongly urge EPA to revisit the water quality standards before we 
embark on a nationwide TMDL effort.
    Unfortunately, under the current and proposed TMDL rules, EPA has 
made it virtually impossible to re-designate the use of a water body. 
The agency has set an extremely high burden that must be reached before 
a standard can be changed. Again, this simply makes no sense. AMSA, 
therefore, urges common sense--that the TMDL program start at the 
beginning with an unbiased, scientific look at what is achievable in 
order to understand the costs and benefits of reaching specific water 
quality goals. EPA has indicated that it will be releasing proposed 
changes to the water quality standards regulation in September 2000. 
However, EPA has also indicated that designated use reviews and 
modifications will not be included in these regulation changes. AMSA 
has proposed to EPA that final promulgation of the TMDL regulations 
move forward only when revisions to the WQS program, which include an 
emphasis on reviewing and refining designated uses, are completed.

                               CONCLUSION

    As we look ahead to future revisions in the water quality standards 
programs, our focus must shift to a more comprehensive approach to 
clean water goals. Addressing the control of costly, more complex and 
diverse sources of pollution will require both creativity and 
flexibility. Many of those involved in water policy issues believe that 
continued water quality improvements can only be met by changing the 
way water programs are managed. Comprehensive watershed management has 
been identified as the most cost-effective, environmentally sound 
approach to address the remaining sources of water quality impairment 
without breaking the bank. Its consistent national application will 
allow stakeholders to work together to tailor solutions to the problems 
at each site. Simply put, watershed management targets resources to the 
highest priorities.
    In conclusion, AMSA's member wastewater treatment agencies have 
consistently and persistently worked to achieve full compliance with 
the goals of the Clean Water Act. We have learned from experience that 
the only way to continue to improve water quality is to address the 
needs of the watershed as a whole, make all sources of pollution 
accountable for their loadings, and to fully fund the activities 
necessary to achieve our latest clean water goals.
    As a further resource on POTWs and TMDLs, I invite you to contact 
AMSA's Washington office to get a copy of AMSA's TMDL ``survival 
guide'' for wastewater agencies, entitled: Evaluating TMDLs . . . 
Protecting the Rights of POTWs. On behalf of my municipal wastewater 
treatment colleagues, I thank you for the opportunity to speak before 
this subcommittee.
                                 ______
                                 
Statement of Joan M. Cloonan, PhD., J.D., Vice President, Environment & 
          Regulatory Affairs, J.R. Simplot Company Food Group
    Good morning, Mr. Chairman and members of the committee. I am Joan 
Cloonan, Vice President for Environment and Regulatory Affairs of the 
J.R. Simplot Company Food Group. The J.R. Simplot Company is a 
privately held agribusiness corporation based in Boise, Idaho. It 
employs more than 12,000 people in the United States, Canada, Mexico, 
Australia and China. Simplot is one of the world's largest processors 
of frozen potatoes, turning out more than 2 billion pounds of French 
fries and other potato products annually. It is one of the nation's 
largest producers of beef cattle and a major manufacturer of 
agricultural fertilizers with markets in the United States, Canada and 
Mexico.
    I am speaking today on behalf of the Northwest Food Processors 
Association, a regional trade association representing the fruit, 
vegetable and specialty processing food industry in Idaho, Washington 
and Oregon. Food processing is the largest manufacturing employment 
sector in the State of Idaho and the second largest manufacturing 
employment sector in both Washington and Oregon. Food processors in the 
region operate 247 processing plants, employ over 50,000 individuals 
and realize over $6 billion in annual sales.
    As part of my written testimony I have provided copies of the 
comments on the TMDL rule submitted by the Northwest Food Processors 
Association as well as those submitted by FIEC, the Food Industry 
Environmental Council, a coalition of more than 50 food processors and 
food industry trade associations. I am not addressing all of the issues 
raised in those comments, but would be happy to answer questions 
regarding them.
    Food processors fully support the goals of the Clean Water Act to 
restore and maintain the quality of the nations waters. We are 
supportive of the general concepts that we believe motivated the 
proposed regulations.
    The proposed regulation states: ``The Water Quality Management 
(WQM) process described in the Act and in this regulation provides the 
authority for a consistent national approach for maintaining, improving 
and protecting water quality while allowing States to implement the 
most effective individual programs.'' This is an admirable goal, but we 
believe that the proposal unreasonably limits the States' discretion in 
how they would achieve the overall goals of the program.
    The Pacific Northwest States have assumed a strong leadership role 
in the establishing and funding programs to meet Clean Water Act 
requirements, including preparation and implementation of TMDL 
programs. All three States are committed to preparing TMDLs for all 
State water bodies listed as water quality impaired within timeframes 
dictated by litigated agreement. It is important to recognize that 
although some Federal funding has been provided to States for the TMDL 
programs, the current programs are primarily funded by State moneys.
    We believe that the TMDL should be a State-managed program. State 
control fosters efficient management by recognizing that the States are 
best equipped to provide the day-to-day oversight and monitoring needed 
to identify and correct water quality problems. We are concerned that 
the proposed rules would significantly change the program from its 
current focus on State management by imposing strong new Federal 
oversight provisions that do not serve us well in achieving clean water 
goals.
    In the State of Idaho program, stakeholder groups work with our 
Division of Environmental Quality to help them develop TMDLs. The 
stakeholder group is charged with development of the implementation 
plan within 18 months of approval of the TMDL. The implementation plan 
is not now subject to EPA approval. The proposed system would include 
the implementation plan as part of the TMDL and add significantly to 
the time for development of the TMDL. In addition, EPA can refuse to 
approve an implementation plan until it is satisfied that the State has 
sufficiently strong authority to achieve water quality standards. Under 
this proposal EPA expands its authorized authority over nonpoint 
sources by its ability to withhold TMDL approval, holding the State and 
point sources hostage to the TMDL process.
    Under the proposed offset provision, listed water bodies cannot 
accept new or significantly increased discharges of the water quality 
limited constituent unless mandatory effluent trading or ``offsets'' 
occur. The offset requirement precedes and may even replace the 
preparation of a TMDL. Effluent trading may potentially place a 
disproportionate burden on point sources inconsistent with the equity 
considerations of the TMDL process. We support voluntary effluent 
trading and oppose any water clean-up program that mandates or coerces 
private parties into effluent trading.
    The State of Idaho is in the forefront working with EPA on the 
development of a voluntary effluent trading program. The process has 
proven to be complicated but this voluntary pilot program could provide 
a model for the rest of the country. The first model trades will 
involve a point source and a nonpoint source. Key concepts are: local 
control, market-based pricing, appropriate ratios. This process will 
encourage and finance nonpoint source projects such as constructed 
wetlands, which otherwise might never happen. Quantification can be 
broad and based on the type of project, with a conservative reduction 
credit, or monitored, with liberal reduction credit. The trade ratios 
will be dependent on the relative locations of the trading partners. We 
believe this will provide a flexible and economic mechanism to meet 
environmental responsibilities.
    We agree with the conclusion reflected in section 130.34 that daily 
loads are inappropriate for certain pollutants such as nutrients, 
sediment, and temperature.
    We concur with the distinction between pollution and pollutant. It 
appropriately narrows the scope of TMDLs by recognizing the 
impracticability of dealing with pollution via the quantitative 
analysis of a TMDL. The background provided by EPA makes it clear that 
this change is specifically designed to exclude flow and habitat 
alteration from the scope of TMDL. Pollution should be addressed by a 
process or processes separate from TMDLs. Listing water bodies for 
pollution under this process, however, diverts States' resources from 
the task Congress clearly intended: listing of water bodies impaired by 
pollutants.
    The prioritization requirements in section 130.28 are highly 
prescriptive and could result in a meaningless priority list, with most 
of the waterways of the State being designated high priority because of 
the presence of any of several listed species. The section also 
requires a fairly substantial written justification for each decision 
to start a TMDL.
    Should threatened water bodies be listed? The statute does not 
require the listing of threatened water bodies; it requires the listing 
of bodies where data show that certain effluent ``are not stringent 
enough to implement any water quality standards applicable to such 
waters.'' The statute does not support the Agency's conclusion that 
water bodies should be listed because there is some possibility that 
standards will not be attained. The States would be required to predict 
which water bodies now meeting standards might not meet standards in 
the future, and then defend those uncertain predictions when they are 
challenged.
    Instead of requiring the listing of threatened water bodies, EPA 
should encourage States to identify water bodies that they believe are 
threatened and to take appropriate actions to assure that they do not 
become impaired.
    EPA should reconsider its attempt to expand its authority into 
traditional State regulatory areas. It is important to look to the 
entire Clean Water Act, with its balance of State and Federal 
authorities for achieving clean water goals, rather than to force the 
TMDL program to achieve these goals on its own in a complex and 
prescriptive program. We believe that the better course is to work 
cooperatively with the States and the regulated community affected by 
the rules and we look forward to working with both the State and EPA on 
these important goals. We look forward to the balance between the 
certainty of a consistent Federal program and the flexibility and 
efficiency of an effective State-managed program.
    Thank you for the opportunity to address you today. I will be happy 
to answer any questions.
                                 ______
                                 

 STATEMENT OF THOMAS THOMSON, NEW HAMPSHIRE TREE FARMER, CHAIR, POLICY 
                  COMMITTEE, AMERICAN TREE FARM SYSTEM

    Good morning. My name is Tom Thomson. I'm a Tree Farmer from New 
Hampshire and chairman of the policy committee for the American Tree 
Farm System.
    I'm grateful for the opportunity to be here today. Our properties, 
the Thomson Family Tree Farm, cover 2,600 acres of working, sustainable 
forests. They're managed by my family--including Sheila, my wife of 33 
years, and my 22-year-old-son Stacey, whom I am honored to represent 
here today.
    But I also want to speak today on behalf of 66,000 other family 
forestland owners who are members of the American Tree Farm System--
founded in 1941 and now the nation's largest and oldest forest 
certification program for small, private landowners. Together, we Tree 
Farmers own nearly 25 million acres of diverse and growing forests.
    That a lot of trees. But it's only a fraction of the 405 million 
acres of forests owned by 9.9 million individual citizens and families 
in the United States. It's those individuals and families not industry 
and not government--who are the true ``majority owners'' of America's 
forests.
    And it's those individuals and families--and the forests they have 
tended--who stand at risk because of EPA's ill-considered policies on 
TMDL and their decision to regulate forestry activities as a point 
source of pollution.
    Sitting right behind me today are four other Certified Tree Farmers 
from around the country--Anitra Webster from Virginia, Wilson Rivers of 
Florida, Bill Lawhon from Ohio, and Greg Daley of New Jersey.
    They are joining me today because Tree Farmers all over this Nation 
are opposed to EPA's proposed rule. I know many of you have seen a list 
of 200 or so people who are opposed to S. 2041 and S. 2139--legislation 
that would prevent EPA from designating forestry as a point source. 
They call it a ``special interest loophole.''
    They're wrong. The attached list contains the names of over 3,000 
Certified Tree Farmers--people who own perhaps 80 or 100 acres of 
forest, who have invested and cared for the land. All of them took the 
time to contact EPA and urge Carol Browner to withdraw the rule. The 
Tree Farm leadership from almost every forested State in the Nation has 
written their Congressional delegation. In some ways, our interest is 
special; we believe in good stewardship and then work to do something 
about it. And we believe Congress was right all along: forestry simply 
shouldn't be considered a point source of pollution.
    Three months ago, most of us didn't know exactly what a TMDL was. 
But each of us knew quite a bit about water quality and forestry.
    Every Certified Tree Farmer--all 66,000 of us--has made a written 
pledge to grow the wood our Nation needs while protecting water 
quality, soil and wildlife habitat. Each of us has pledged to meet or 
exceed State best management practices. Many of us provide recreation 
opportunities for our neighbors--a place to hike, watch the leaves 
change colors, fish or hunt. And our Tree Farms are inspected every 5 
years by professional foresters to assure we meet the high standards of 
the American Tree Farm System.
    I'm proud to say that Certified Tree Farms are among the most 
beautiful, best managed forests in the United States.
    And we are enthusiastic about preaching what we practice. Many of 
us work with our State agencies and with our State Tree Farm Committees 
to help educate other landowners about the importance of following BMPs 
and practicing the best kind of sustainable forestry.
    With this kind of aggressive, private and voluntary stewardship, it 
is no surprise that water quality issues related to forestry are small 
and getting smaller.
     Compliance rates now approach 90 percent in many of the 
States where BMPs are in place.
     Total river and stream miles impaired due to silviculture 
declined 20 percent between 1994 and 1996.
     The number of miles deemed to have ``major impairment'' 
from silviculture fell 83 percent.
     In 1996, EPA dropped silviculture from its list of 7 
leading sources of river and stream impairment.
     That same year, silviculture contributed only 7 per cent 
of total stream impairment.
    We are proud of this record, and anxious to work with our State 
agencies the people who know our land and water best--to do an even 
better job in the future.
    But, from where we stand, EPA's proposal to designate forestry 
activities as a point source of pollution will make it harder, not 
easier to do that job. We see this as a clear case where ``trying to 
fix it will break it.''
    Let me explain.
    Owning and managing forestland is risky business. It is definitely 
not for the faint-hearted. Two years ago on January 8, a massive ice 
storm stunned four northeast States, and caused hundreds of millions of 
dollars of damage to forests. Two months before that storm, our own 
Tree Farm was recognized as the Outstanding Northeastern Tree Farm for 
1997. Three days after the storm, 900 acres of prime forestland were 
devastated. Our legacy to our son Stacey lay on the ground, broken 
under the weight of tons of ice.
    Today we are working tirelessly to repair the land. It will take a 
whole generation to restore our forests.
    Every other Tree Farmer faces the same kind of challenge perhaps 
from fire, or insects, or drought and disease. But most of us are 
willing to make the best of it, or at least try.
    What do we need to succeed?
    First, the flexibility to conduct our timber operations when the 
time is right--and that time may be when we need money to pay for 
surgery or college tuition or retirement. Or it may be when market 
conditions are just right and we can get the kind of return we want on 
our investment. Or it may be, as it is for us, when we're racing 
against the clock to retrieve some value from our ice-damaged timber 
before it's lost to insects and rot.
    Second, we need the opportunity to work with the State forestry 
agencies that know us . . . and the land . . . best. Landowners have 
worked with these agencies to establish BMPs. We work with these 
agencies to assure that compliance is where it should be. Where it 
isn't, we've worked to find ways to improve it--and I know we will 
continue to do so in the future. EPA already reviews and approves BMP 
programs. Why not continue down this road that's already taken us so 
far.
    The alternative EPA proposes is--plain and simple--a Federal 
regulatory program that reaches far beyond ``bad actors'' to virtually 
every forest landowner, including the millions of people like me whose 
forest practices improve the environment, not hurt it.
    What happens if we're faced with this radical departure in law and 
policy? Requiring us to get a permit will likely cost us money, even if 
it's simply to qualify under a general permit. It will almost certainly 
take time. And, if my friends are right about the inevitability of 
citizen suits gumming up the whole process, that time might stretch out 
to forever.
    In other words, practicing sound sustainable forestry won't get 
easier; it will get harder. Especially today, when urban sprawl is 
sending the value of forestland into the stratosphere and developers 
call week after week with offers to buy up your Tree Farm, then pave 
it.
    So far we've just said no. But others may not be able to--
especially if they're faced with more red tape, higher costs and a 
Federal permitting system that could lead, ultimately, to lawsuits from 
faraway places trying to stop the one timber harvest they might plan 
every decade.
    I know that EPA officials claim they will only use permitting in 
extreme cases where damage to water quality is severe and State 
programs are not effective. But lawyers who have studied the issue 
claim that case law will make it very difficult for EPA ultimately to 
prevent the designation of all forestry operations as subject to point 
source discharge permits, once they have started down the road they 
propose.
    Under these circumstances, many landowners might do what Thomas 
Dowd--a Certified Tree Farmer from Massachusetts--wrote on January 8 in 
a letter to his State's Congressional delegation: ``Should the EPA, 
through increasing regulation, make Tree Farming uneconomical, the 
unintended consequence would be that I would most likely sell my 200 
acres of forest for a housing subdivision.''
    This is no idle threat. In my own home State of New Hampshire, more 
and more forestland is falling under developers' bulldozers every year. 
In 1983, 87 percent of New Hampshire was covered by forests. In 1993, 
that number had dropped to 83 percent. By 2020, even the most 
optimistic survey by the Society for the Protection of New Hampshire 
Forests has that number falling to 80 percent.
    That's a lot of trees, about twice as much forest cover as we had 
100 years ago. But, best case, it still means we'll lose about 150,000 
acres of forest in the next 20 years just in my little State--most of 
it developed, replaced by homes, shopping centers and parking lots.
    No one would argue that this is good for water quality or the 
environment. It's not.
    So what about Thomas Dowd, and me and countless other landowners 
who simply aren't inclined to sell? EPA and Congress can make it easier 
for us to say no--much easier--by getting rid of red tape, not adding 
to it. Don't impose a Federal permitting system.
    You can make it easier for us to do even more for water quality by 
directing a larger share of Section 319 funds to forest landowners for 
improvement projects. Right now, only 2 percent of those funds are 
devoted to forestry. Help us expand our heritage of voluntary, private 
stewardship. Make it possible for EPA to invest public resources in the 
kind of citizen initiatives that have already worked for decades.
    Over the past 60 years, our American Tree Farm System and the 
66,000 landowners who've pledged to meet its standards, have made 
enormous strides in conserving our forests and water. It is a record we 
should celebrate, not regulate--and we invite you to join us.
                                 ______
                                 
                                            Pine Knob Farm,
                                    Whitefield, NH, March 13, 2000.
Mr. Tom Thomson,
Orford, NH.
    Dear Tom: Forwarded is a copy of the letter we sent to the EPA 
regarding the proposal to designate forestry operations as a point 
source for pollution. We were pleased to learn that you will be going 
to Washington to testify before the Fisheries, Wildlife and Water 
Subcommittee of the U.S. Senate's Public Works Committee regarding the 
proposed change. We hope the members of this committee appreciate what 
Tree Farmers and most woodland owners regardless of affiliations do to 
improve water quality not degrade it.
    Please provide a copy of our letter of January 17, 2000, addressed 
to the EPA to the subcommittee and any other interested parties. We 
trust that reason will prevail and that a non-partisan intervention by 
the Senate and, hopefully, the House as well will insure that the EPA 
withdraws this proposal as one which will do more damage than good to 
our nation's forests.
            Sincerely,
                                                  David W. Tellman.
                                 ______
                                 
                                            Pine Knob Farm,
                                  Whitefield, NH, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Environmental Protection Agency,
Washington, DC.
    To Whom It May Concern: Do not designate forestry operations as a 
point source for pollution. As Tree Farmers and as stewards of the land 
we have tried our best to maintain or improve water quality, wildlife 
and plant habitats as well as the quality of timber for eventual 
harvest by our grandchildren.
    Most of our more than 800 acres of forest grows on hydric soils. We 
have limited timber harvests to frozen ground, but on occasion there is 
a thaw during the operation which may cause some temporary run off. 
Seldom has this affected any area beyond the immediate operation. Most 
people would never see a problem, but we have shut down logging 
operations until freezing temperatures return. We take other measures 
as well to protect water quality during and after logging operations. 
Most landowners and loggers, whether or not they are Tree Farmers, 
follow the same procedures. As landowners we must live with the results 
of what we do. We do not need more permits, analysis, fees or ``outside 
experts'' telling us how to manage our land.
    We have, for many years, encouraged school groups, various 
organizations and individuals to visit our Tree Farm to see the way we 
manage the land, to hunt, to hike or to cross country ski. We have 
invited people to see logging operations in progress. No one has ever 
questioned our care of the land, but two hikers did question the 
cutting of ``all those beautiful trees''.
    Regrettably we have a few people in our town and surrounding 
communities who do not believe a tree should ever be cut whether in our 
nearby White Mountain National Forest or on private land. These 
individuals will welcome your proposed rules, especially the 
opportunity to bring legal action against landowners for perceived 
violations. It would only take a couple of well publicized cases not 
only to curtail logging on private lands, but also to end good and 
active stewardship on such lands. More private land now open to the 
public will likely be posted against trespassing.
    Encourage and assist private landowners to be good stewards of the 
land. Do not promulgate new regulations which will in the long term 
defeat what we all want to achieve--retention of open space, clean 
water, clean air, a habitat that will sustain diverse wildlife and 
plants alike and a place for people to enjoy. We are enclosing a copy 
of the information sheet we give visitors to our Tree Farm. We would 
welcome the opportunity to have one or more EPA folks visit and see for 
themselves some of what we have done.
            Sincerely,
                                   David W. Tellman and Tanya S. 
                                       Tellman,
                                             New Hampshire Tree Farm 
                                               #2112.
                                 ______
                                 

                   STATEMENT OF THE CHEVRON COMPANIES

    We appreciate the opportunity to present our views for the record 
to the Subcommittee on Fisheries, Wildlife, and Water of the Senate 
Committee on Environment and Public Works. Chevron is the ninth largest 
industrial corporation in the United States and the world's fifth 
largest energy enterprise. We are an integrated oil company involved in 
all aspects of the energy business: exploration, production, 
manufacturing, transportation, marketing, and research. Chevron is an 
environmentally responsible company and is often considered a leader in 
implementing advanced water pollution controls. We take our 
environmental responsibilities very seriously, and achieve high 
standards. Chevron does support part of the proposed rulemaking 
published August 23, 1999 on the Total Maximum Daily Load (TMDL) and 
permit programs under the Clean Water Act. We share EPA's goals for an 
open, scientifically sound program based on adequate data and run by 
the States. However, we do have concerns about sections of the proposed 
rule.

            CURRENT ACTIVITY ON TMDL'S AND IMPACT ON CHEVRON

    Prior to discussing the specific concerns about the rule, we would 
like to take the opportunity to discuss a growing issue of concern. We 
are becoming increasingly concerned that some of the EPA Regions are 
beginning to implement the rulemaking prior to finalization, and in 
some cases going beyond what would be provided in the regulations. 
Notably, EPA Region IX is aggressively (and prematurely, we feel) 
advancing the TMDL program in the San Francisco Bay when existing 
operating permits at point source facilities, such as refineries, come 
up for renewal (roughly every 5 years). It appears for some metals, 
such as mercury, point sources will have to meet very stringent water 
quality objectives at the end of the discharge pipe without any 
dilution credit (even though point sources contribute less than 1 
percent of the mercury load in the Bay). In this case, refineries have 
already installed costly controls, and to meet the new tighter limits 
will likely mean going to a zero discharge mode (total water recycle). 
No refinery does this currently and it may not even be technically 
feasible. It would involve using the treated wastewater in the cooling 
towers and then eventually evaporating the residual waste brines and 
hauling away many tons of salts and solid waste. For one of our 
refineries, we estimate the capital cost would be over $80 million with 
annual operating expense of tens of millions of dollars. There would be 
no added environmental benefit to the Bay as a result of this action. 
We believe that this Region, and perhaps others, are going beyond 
current rules as well as overtaking and interfering with the State's 
authority.
    The TMDL program, as provided under current rules, should be 
allowed to run its course as Congress intended to allow States to set 
sound credible limits on sources, rather than EPA Region IX's arbitrary 
and unscientific actions to force dischargers to zero. It should be 
additionally noted that this is coming at a time when there are general 
concerns about the impact of stringent environmental rules on the oil 
industry, and how this translates into the additional costs of 
producing gasoline.

                    IF CONGRESS WERE TO TAKE ACTION

    We share many of the same concerns that the States have also raised 
about the proposed rulemaking including workload, funding, and State 
authority over implementation of the program versus Federal control. 
The National Governors' Association (NGA) has put forward a policy 
which outlines and asks Congress to address many of these issues. We 
believe that the most helpful role for EPA is to use its vast resources 
to develop sound technical guidance that States can use for such tasks 
as developing TMDLs and load allocations.
    If Congress were inclined to take some legislative action on the 
TMDL program, we would like to suggest the following:

    A. Reduce the Huge Workload of 40,000 TMDLs. If the States are to 
submit 40,000 TMDLs, EPA Regional Offices will have to approve one TMDL 
every workday for the next 15 years. Such a fast pace would make it 
impossible for TMDLs to be grounded in sound scientific principles and 
relevant data. Congress needs to help the States out of this bind by 
sending a clear message that States can and should prioritize and re-
issue their lists of impaired waters and TMDLs using sound methods. 
Further, Congress should ensure that EPA will not second guess State 
de-listing decisions for waters in which only outdated, insufficient, 
or poor quality data exist.
    Even the environmental group NRDC said in their comments on the 
proposed TMDL rule that they ``would rather see States develop fewer 
comprehensive TMDLs than advance hundreds of inferior load limits'' (1/
20/00 letter to EPA docket). Listings should be for significant and 
real impairments, not based on esoteric reasons such as ``not enough 
grass on the stream bottom.'' Listings should be based on some 
objective basis that ties in a meaningful way to what ultimate 
``success'' should look like. More stakeholders will support the 
program if they understand this ultimate goal and that the process is 
sound and objective.

    B. All Parties That Contribute to Impaired Waters Should be 
Involved. There is a need to address fairly the role of all sources in 
moving forward to improve impaired waters. To this end, the focus of 
the TMDL program must shift from the point source dischargers to all 
sources of pollution to our nation's waters. All parties must 
participate in a timely and measurable way. It would not be equitable 
to force one group of sources to again bear the brunt of further 
allocation reductions while others are not held accountable for 
significant contributions to water quality impairment. The National 
Governor's Association appears to take a similar stance: ``A water 
quality attainment plan should include an allocation for point and 
nonpoint source reductions required to meet water quality standards . . 
.'' ``States . . . may consider cost-effectiveness, technical 
feasibility, and . . . point and nonpoint sources will be held 
accountable for their respective allocated reductions'' (Section 3.2.1 
in Ref. 1).
    According to EPA, of the 20,000 impaired water bodies nationwide:
     43 percent are impaired by non-point sources solely,
     10 percent by point sources solely, and
     47 percent are impaired by a combination of point and non-
point sources.
    In our home State of California the numbers are even more 
striking--only 1 percent of water bodies are impaired solely by point 
sources. EPA's Assistant Administrator for Water, Chuck Fox, testified 
before Congress on October 28, 1999 that ``pollution from factories has 
been dramatically reduced. But runoff from city streets, rural areas, 
and other sources continues to degrade the environment.'' It would be 
helpful to clarify by law or expressions of intent that other methods 
are needed when voluntary best practices (e.g., under CWA Section 319), 
in combination with appropriate and reasonable point source controls, 
are not sufficient to improve impaired waters.
    A simple step (along the lines of NGA's position above) that would 
be extremely helpful would be to require full investigation and 
disclosure of all the sources' contributions to the impairment and a 
rough estimate of the cost-effectiveness of controls on those different 
sources. With such facts on the table, it is usually easier to reach 
consensus on an implementation plan. We have seen this approach work 
well in local air pollution programs.

    C. Congress Shouldn't Have Courts Run the TMDL Program. EPA's 
proposed TMDL rule gives States 15 years to develop TMDLs. Even though 
many States say that time schedule would be very difficult given the 
massive workload, court actions are setting even tougher 5- and 7-year 
schedules. Whether or not EPA's rule is postponed or additional time is 
granted to States, Congress should seek every available opportunity to 
clarify its intent regarding the TMDL program. We need to establish a 
priority-based mechanism that maps out sound, equitable progress in 
TMDL development and implementation while barring unrealistic schedules 
that lead to poor results and more litigation. The authority must lie 
with the States, and the workload prioritized.

    D. Provide More Funding. The cost to State agencies to develop the 
TMDLs has been estimated as high as $20 billion over 15 years. Yet, the 
Administration has estimated that the States' costs will only be $25 
million per year. Interestingly enough, the Administration's proposed 
funding to States for the TMDL program is $45 million per year. Clearly 
these funds are woefully inadequate to accomplish the anticipated 
workload and the cost estimates in the regulation are unrealistic. At 
this point, no one really knows what the real costs will be, but we 
agree with the States that if the program is to be implemented as 
proposed, significantly more funds must be provided to State agencies. 
A study to look at what the actual costs will be, based upon prior 
experience, would be helpful to ensure that the correct level of 
funding is provided.

    E. Allow More Time for Legacy Pollutants. In the Great Lakes 
Initiative, EPA authorized phased TMDLs, which allow additional time to 
reach attainment. Phased TMDLs are based on the gradual removal of 
legacy sources such as contaminated sediments. Since this problem is 
not unique to the Great Lakes but rather nationwide, Congress should 
clarify that for these situations fixed time schedules for attainment 
are not required in the implementation plans.

    F. Allow Permit Renewals to Get Benefit of TMDLs. EPA's goal is to 
renew permits for point sources every 5 years or sooner. At permit 
renewal, our fear is that some EPA Regions may be tempted to 
drastically tighten permit limits before TMDLs have been developed and 
TMDL-based limits determined. Once such limits have been implemented, 
Clean Water Act ``anti-backsliding'' provisions [CWA Section 402(o)] 
may prevent subsequent implementation of less stringent requirements, 
even if a new TMDL would call for less stringent requirements. Congress 
should prevent EPA Regions from unjustified tightening of permit limits 
on a point source while a TMDL is being developed, since the TMDL may 
determine that these stringent requirements are unnecessary. We should 
first establish TMDLs, then set sound limits.

    G. States Should Run the Program. We agree with suggestions made by 
NGA in their water policy paper regarding Federal versus State roles 
(Section 3.2.2 in Ref. 1), \1\ such as having EPA approve the State's 
water program, but not the individual plans for each water body. Also, 
we like NGA's suggestion that if EPA rejects a State's program, the 
State should be given a reasonable amount of time to make 
modifications. A recent example where we feel EPA is getting too 
involved in what should be a State decision is Region IV's actions on 
the mercury TMDL for the Savannah River. EPA is replacing the State's 
water quality standard of 12 ppt with EPA's own target of 1 ppt. Of 115 
point sources, EPA is requiring only two facilities to meet the 1 ppt 
since they just happen to have mercury limits in their existing 
permits. The other 113 sources, as well as air emissions and other 
sources are not being considered. This is an example of where we 
believe that EPA's quick approach is neither technically sound nor 
equitable for the two targeted facilities.
---------------------------------------------------------------------------
    \1\ NGA's Policy on Water Resource Management, Adopted Winter 
Meeting 2000; See www.nga.org
---------------------------------------------------------------------------
    EPA should develop comprehensive guidance and workshops on how to 
develop TMDLs, load allocations, and other details for the States. We 
feel that such communication among EPA Regions, States and EPA 
Headquarters often result in better solution ideas and improved 
cooperation.
    We do have some additional concerns with EPA's proposed rule beyond 
the items discussed above, however we have tried to focus comments on 
our highest priority issues. We appreciate the opportunity to provide a 
statement for the record, and look forward to continuing to work with 
the subcommittee to address these issues.
                                 ______
                                 
                                         Joe F. Nix, Ph.D.,
                                    Arkadelphia, AR, June 21, 2000.
Chairman,
Senate Committee on Environment and Public Works,
Washington, DC.
    Dear Mr. Chairman: I wish to make a few comments regarding proposed 
EPA regulations which would require permitting of silviculture 
operations based on TMDL allocation of impaired streams. As a matter of 
background, I am a chemist and I have spent 30 years of my professional 
life studying streams and lakes of Arkansas. Although I fully 
understand the position of those who oppose the regulation based on 
economic impact, I think that there is a more fundamental issue which 
appears to have been overlooked.
    The fact is that there is very little scientific evidence which 
indicates that silviculture activities are a major source of stream 
impairment in Arkansas. I think it is generally understood that the 
nature and magnitude of water quality impacts from silvicultural 
actives vary from region to region. What may be true on steep slopes of 
the Pacific Northwest may not be true or applicable to the timberlands 
of Arkansas or the southeastern U.S. EPA seems to have assumed that 
there is an impact then set out to develop regulations to control 
something that does not necessarily exist.
    Others have suggested that the TMDL program provides a sound 
framework for the evaluation of the factors which impact streams. This 
is true but it should be recognized that the process has not progressed 
to the point where significant stream impairment from silviculture has 
been demonstrated in this part of the country.
    Most of the data that I have seen indicates that the source of 
sediment in most of the streams throughout the timber producing areas 
of the southeast is roads and road cuts. Obviously there is some road 
construction associated with silviculture operations but I have yet to 
see a study that indicates that roads built for silvicultural purposes 
constitutes a majority of the sources.
    I am also convinced that we do not understand the loading which 
occur from the natural environment An understanding of these processes 
is needed so that a comparison can be made to loading from 
anthropogenic sources. In some cases, the loading from anthropogenic 
sources may be lost in the background of natural processes. Additional 
studies are needed to make this type of comparison.
    To summarize, I do not believe that the proposed EPA regulation has 
scientific merit at this point. EPA and other funding agencies should 
direct research funding in an effort to answer critical questions about 
sources of loading from the natural environment and only then consider 
the need for regulations. To be specific, it is wrong to regulate 
without cause then go out and see if the regulation is really needed. 
The reverse would be a more logical approach. EPA must learn to adhere 
to good science.
            Sincerely,
                                                  Joe F. Nix, Ph.D.
                                 ______
                                 
                                  Green Bay Packaging Inc.,
                                      Morrilton, AR, June 21, 2000.
Committee on Environment and Public Works,
Washington, DC.
    Honorable Sirs: My name is Allen Farley and I am the Landowner 
Assistance Forester with Green Bay Packaging Inc. in Morrilton, 
Arkansas. I would like to commend your committee for the thorough job 
you are doing with evaluating the purpose and need of additional 
Federal regulations concerning TMDL standards relating to forestry 
practices. As you are aware from the public meetings and panel 
discussions, the State of Arkansas has multiple layers of leadership in 
place to monitor the water quality of our State and are very conscious 
of maintaining the environment in a professional manner.
    It is my belief that any additional Federal regulations forced on 
the citizens of Arkansas to attempt to fix a problem that does not 
exist by the EPA would not only cost the tax payers many millions of 
dollars unnecessarily, but would hamper if not eliminate the private 
landowner from conducting needed silvicultural practices to improve 
their forests. A large part of my job is to educate and to assist 
private landowners in conducting wise and correct forest management 
practices. I have never come across any landowner that is not concerned 
with water quality, erosion, wildlife and planting trees for the 
future. Any regulations that may cause money to be taken out of the 
pockets of these landowners will adversely effect their decision to 
actively manage their property.
    I trust your committee will be very cautious with any decisions 
concerning altering the way private landowners and industrial forest 
products companies management of their lands.
            Sincerely,
                                              Allen Farley,
                                     Landowner Assistance Forester.
                                 ______
                                 
         [From the New Hampshire Sunday News, February 1, 1998]

                      Tree Farms Tally Ice Damage

    A landscape littered with downed limbs and splintered trunks seems 
to make a mockery of the sign posted at the entrance to Tom and Sheila 
Thomson's 1,060-acre woodlot in Orford: ``Thomson Family Tree Farm and 
Wildlife Habitat, A Working Sustainable Forest.''
    Weeks after one of the worst ice storms on record hit New England, 
New York and Quebec, the Thomsons and thousands of other private forest 
landowners are reeling from the disaster's impact on their woodlots. 
``I just can't believe it. It looks like a bomb struck out there,'' 
said Tom, who owns and manages 2,400 acres of forest along the New 
Hampshire-Vermont border.
    Although recovery operations are under way, Thomson says the storm 
devastated 90 percent of his trees, the outlook for meaningful salvage 
efforts is bleak.
    Preliminary estimates indicate that 20 percent of the region's 26 
million acres of forests suffered moderate to severe damage. Most, like 
Thomson's, were privately owned woodlots ranging in size from 10 to 500 
acres.
    ``Forest owners depend on the income from timber and firewood, or 
from maple syrup production,'' said Larry Wiseman, president of the 
American Forest Foundation. ``It provides the cash they need to pay 
taxes, plant trees and keep their forests healthy.''
    With five million acres of forests damaged, it will be nearly 
impossible for landowners to receive ample compensation for their 
timber, or to replace the income they've lost. More than 70 percent of 
the forestland in the Northeast is privately owned.
    ``This isn't really about money,'' said Wiseman. ``It's about the 
future of New England's forests, watersheds and wildlife.'' Conversion 
of forestland for development, he said, may be the biggest threat posed 
by the storm.
    ``All the landowners I know are passionate about good stewardship. 
But if I were looking at 20 years of income lying on the ground, I'd 
listen a lot more closely the next time a developer came calling.''
    Honored last November for his exemplary forest stewardship with the 
American Tree Farm System's Northeast Regional Tree Farmer of the Year 
Award, Thomson--a son of former Gov. Meldrim Thomson--bought his first 
125 acres when he was 11 years old. Little by little he purchased more 
land, all the while managing its resources according to the principles 
of sound forestry.
    Tree Farm System Director Robert Simpson says the Thomson operation 
was a study in how everyone benefits from good stewardship. ``By 
conserving water and wildlife habitat and providing recreational 
opportunities for their neighbors, Tom and Sheila represent the very 
best in non-industrial private forestland ownership,'' he said. ``The 
devastation they're facing will be felt far beyond the boundaries of 
their tree farm.''
    Moose, bear, coyote, deer, beaver and more than 90 identified 
species of birds live on and visit their farm. The Thomsons built 
hiking trails connected to the Appalachian Trail, and opened their land 
to cross-country skiers and other outdoor recreation enthusiasts. In 
addition, dozens of area schools and civic groups have visited their 
woods to learn about the value of sustainable forestry.
    ``On an emotional level, the thing that hurts most is the loss of 
the legacy that Sheila and I worked so hard to leave for our son,'' Tom 
says.
    Like his father, 20-year-old Stacey Thomson got an early start in 
forestry. He received a 12-acre woodlot as a birthday gift when he 
turned 12, and recently bought his first house with the profits from 
his own firewood business.
    Two months ago Stacey started his own timber harvesting business, 
as well, and bought a skidder to remove timber from his tree farm. ``My 
dad and I weren't planning to harvest our tree farm under these 
conditions,'' he said.
    Tom is working with his forester in preparing a new forest 
management plan. ``At a time like this, you look for the positive 
opportunities and make the most out of them,'' he said. ``Our 
management plans have changed because of the storm, but our goal 
remains the same--to maintain a working, sustainable tree farm and 
share it by offering educational and recreation opportunities to 
others.''
    With its nearly 70,000 non-industrial, private forest landowners, 
the American Tree Farm System is the nation's oldest and largest 
certifier of sustainable forestry.
                                 ______
                                 
    OVER 200 ORGANIZATIONS OPPOSE CLEAN WATER ACT SPECIAL INTEREST 
               LOOPHOLES (H.R. 3609, S. 2041 AND S. 2139)
                                                     MARCH 9, 2000.
    Dear Senators and Representatives: We--the attached 207 
organizations and 76 individual citizen clean water advocates--strongly 
oppose legislative proposals recently introduced in the House and 
Senate that would create a huge new special interest loophole in the 
Clean Water Act for forest industries that pollute our nation's rivers, 
streams, lakes and oceans.
    Our organizations represent hundreds of thousands of members who 
use the nation's waters for recreational, commercial and subsistence 
purposes. These new bills, H.R. 3609, S. 2041 and S. 2139, would 
threaten the water quality that our members and the American public 
rely on for these important uses. We not only object to the substance 
of these bills, we are concerned by reports that they might emerge as a 
legislative rider on an appropriations bill--a particularly 
inappropriate backdoor strategy for attempting to overturn a 
longstanding provision of the Clean Water Act. We ask you to oppose 
this anti-environmental legislation, whether it is in the form of a 
stand-alone bill or a rider.
    In sum, these bills would create an unprecedented statutory 
exemption from the Clean Water Act's National Pollutant Discharge 
Elimination System (NPDES) for logging activities that cause point 
source discharges into waters of the United States. These bills have 
been spurred by an aggressive misinformation campaign about a recent 
rule change proposed by the Environmental Protection Agency (EPA) that 
would require certain point source discharges from silvicultural 
activities to obtain NPDES permits. The proposed rule would require 
that logging-related direct discharges get NPDES permits only under 
certain narrow circumstances, including when such discharges are 
causing significant pollution of waters that are already too polluted. 
Contrary to the rhetoric of those opposing this rule, EPA's proposal 
only addresses point sources--it does not purport to regulate non-point 
sources--and regulation of these point sources is not inconsistent with 
the Agency's authority under the Act.
    The Clean Water Act contains no exemption from the definition of 
``point source'' for silvicultural activities. Although EPA has not 
treated most silviculture activities as point sources in the past, the 
Agency has found that an automatic exemption in EPA's rules is no 
longer appropriate if we are to achieve the Clean Water Act's goal of 
fishable and swimmable waters. In those cases where a forestry-related 
practice meets the statutory definition of ``point source'' and the 
activity is a significant source of water pollution, EPA and the States 
must be able to regulate and control pollution from that activity. Any 
regulation of logging pollution would still be limited to those 
activities that already fall within the statutory definition of ``point 
source.''
    Logging and logging roads degrade water quality in many parts of 
the country. Numerous scientific studies have documented the serious 
harm to water quality and aquatic ecosystems that can be caused by 
logging practices and logging roads. Roads and logging can 
significantly pollute and even destroy stream ecosystems by introducing 
high volumes of sediment and nutrients into streams, changing natural 
stream flow patterns, and damaging vital aquatic habitats. Eliminating 
the automatic exemption from point source regulation for silvicultural 
activities that have point source discharges is necessary to address 
water quality problems in many States.
    Regardless of your view of EPA's current rulemaking proposal, there 
is no legal or public policy justification for the environmentally 
destructive loophole in the Clean Water Act that H.R. 3609, S. 2041 and 
S. 2139 advance. These bills would weaken one of our nation's most 
successful environmental laws for the benefit of a few forestry 
companies at the expense of clean water. Please stand up for clean 
water and responsible forestry practices by opposing H.R. 3609, S. 
2041, S. 2139 and any related anti-environmental rider that would 
exempt silviculture point source pollution from the Clean Water Act.
            Sincerely,
                    Brad McLane, Alabama Rivers Alliance, Birmingham, 
                            AL; Beth K. Stewart, Cahaba River Society, 
                            Birmingham, AL; Kenneth Wills, Alabama 
                            Environmental Council, Birmingham, AL; Dan 
                            Murchison, Chilton Pride, Chilton County, 
                            AL; Gershon Cohen, Earth Island Institute, 
                            Haines, AK; Bob Shavelson, Cook Inlet 
                            Keeper, Homer, AK; Shawn Porter, Arkansas 
                            Watershed Alliance, AR; Bill Kopsky, 
                            Arkansas Public Policy Panel, Little Rock, 
                            AR; Nick Zunick, Senior Patrol Leader, Boy 
                            Scout Troop Fifteen, Hot Springs, AR; David 
                            Reagan, Ouachita Watch League, Hot Springs 
                            Nat'l. Pk., AR; Mariah Myers, Sierra 
                            Student Coalition, University of Arkansas, 
                            Fayetteville, AR; Robert Lippman, Glen 
                            Canyon Action Network, Flagstaff, AZ; 
                            Barbara Vlamis, Butte Environmental 
                            Council, Chico, CA; Michael McFarland, 
                            Fresno Audubon Society, Fresno, CA; Kyle 
                            Haines, Klamath Forest Alliance, Etna, CA; 
                            Patricia McCoy, Southwest Interpretive 
                            Association, Imperial Beach, CA; Mary Bull, 
                            Save the Redwoods/Boycott the Gap Campaign, 
                            Fort Bragg, CA; Craig Thomas, Center for 
                            Sierra Nevada Conservation, Georgetown, CA; 
                            Robin Mayer, Magic, Stanford, CA; Stephen 
                            Sayre, Lassen Forest Preservation Group, 
                            Chico, CA; Vivian Parker, Shasta Chapter, 
                            California Native Plant Society, Kelsey, 
                            CA; Tarren Collins, Santa Lucia Chapter/
                            Sierra Club, Atascadero, CA; Kent 
                            Stromsmoe, Forestry Monitoring Project, 
                            Martinez, CA; Geoffrey Smith, Sierra Club, 
                            San Diego Chapter, San Diego, CA; Britt 
                            Bailey, Center for Ethics and Toxics, 
                            Gualala, CA; Steve Nicola, California 
                            Indian Basketweavers Association, Nevada 
                            City, CA; Wendy Blankenhiem, Community 
                            Action Network, Medocino, CA; Jonathan 
                            Kaplan, WaterKeepers Northern California, 
                            San Francisco, CA; Dr. Rob Schaeffer, SAFE: 
                            Save Our Ancient Forest Ecology, Modesto, 
                            CA; Jess Morton, Audubon-Palos Verdes/South 
                            Bay, San Pedro, CA; Ara Marderosian, 
                            Sequoia Forest Alliance, Weldon, CA; 
                            Christine Ambrose, Citizens For Better 
                            Forestry, Arcata, CA; Mary Ann Matthews, 
                            State Forestry Coordinator, California 
                            Native Plant Society, CA; Chris Maken, 
                            Concerned Citizens for Napa Hillsides, 
                            Napa, CA; Redwood Mary, Plight of The 
                            Redwoods Campaign, Ft. Bragg, CA; Tom 
                            Wodetzki, Alliance for Democracy, Mendocino 
                            Coast Chapter, Albion, CA; Jean Crist, 
                            Protect Our Watershed, Magalia, CA; Chris 
                            Poehlmann, Gualala River Improvement 
                            Network, Annapolis, CA; Patricia M. 
                            Puterbaugh, Lassen Forest Preservation 
                            Group, Chico, CA; Christopher M. Papouchis, 
                            Animal Protection Institute, Sacramento, 
                            CA; Irvin Lindsey, Outdoor Science 
                            Exploration, Santa Cruz, CA; Steve 
                            Sugarman, Social & Environmental 
                            Entrepreneurs, Malibu, CA; Alan Levine, 
                            Coast Action Group, Point Arena, CA; Holly 
                            Hannaway, LightHawk, Aspen, CO; Harlin 
                            Savage, American Lands Alliance, Boulder, 
                            CO; Jacob Smith, Wildlands Center for the 
                            Prevention of Roads, Boulder, CO; Jon 
                            Jensen, Center for Native Ecosystems, 
                            Boulder, CO; Sloan Shoemaker, Aspen 
                            Wilderness Workshop, Aspen, CO; Annie 
                            White, CU-Sinapu, Boulder, CO; Steve 
                            Glazer, High Country Citizens' Alliance, 
                            Crested Butte, CO; Jeffrey A. Berman, 
                            Colorado Wild, Boulder, CO; Margaret Miner, 
                            Rivers Alliance of Connecticut, 
                            Collinsville, CT; Sharon Buccino, Natural 
                            Resources Defense Council, Washington, DC; 
                            Steve Holmer, American Lands Alliance, 
                            Washington, DC; Ed Hopkins, Sierra Club, 
                            Washington, DC; Joan Mulhern, Earthjustice 
                            Legal Defense Fund, Washington, DC; 
                            Courtney Cuff, Friends of the Earth, 
                            Washington, DC; Brock Evans, Federation of 
                            Western Outdoor Clubs, Washington, DC; 
                            Catrina Ciccone, Lutheran Office for 
                            Governmental Affairs, Evangelical Lutheran 
                            Church in America; Washington, DC; Nick 
                            Brown, World Wildlife Fund, Washington, DC; 
                            Aaron Viles, U.S. PIRG, Washington, DC; 
                            Mike Leahy, National Audubon Society, 
                            Washington, DC; Amy Lesser, Center for 
                            Environmental Citizenship, Washington, DC; 
                            Rebecca Wodder, American Rivers, 
                            Washington, DC; James S. Lyon, National 
                            Wildlife Federation, Washington, DC; Tim 
                            Eichenberg, Center for Marine Conservation, 
                            Washington, DC; Brock Evans, The Endangered 
                            Species Coalition, Washington, DC; Doug 
                            Sloane, Southeast Forest Project, 
                            Washington, DC; Mary Beth Beetham, 
                            Defenders of Wildlife, Washington, DC; Ted 
                            Morton, American Ocean Campaign, 
                            Washington, DC; Karsten A. Rist, Tropical 
                            Audubon Society, Miami, FL; Beth Frazer, 
                            Community Watershed Project, Athens, GA; 
                            Doug Haines, Georgia Legal Watch, Athens, 
                            GA; Ohana Foley, Student Peace Action 
                            Network, Haiku, HI; Linda Appelgate, Iowa 
                            Environmental Council, IA; Marti L. 
                            Bridges, Idaho Rivers United, Boise, ID; 
                            G.A. Bailey, Selkirk-Priest Basin 
                            Association, Priest River, ID; Liz Sedler, 
                            Alliance for the Wild Rockies, Sandpoint, 
                            ID; J. Dallas Gudgell, Idaho Conservation 
                            League, Boise, ID; Lee Halper, Land, Air & 
                            Water Society, Jerome, ID; Chuck Pezeshki, 
                            Clearwater Biodiversity Project, Moscow, 
                            ID; Lynne Stone, Boulder-White Clouds 
                            Council, Ketchum, ID; Katie Fite, Committee 
                            for Idaho's High Desert, Boise, ID; Albert 
                            Ettinger, Environmental Law and Policy 
                            Center of the Midwest, Chicago, IL; Frank 
                            Ambrose, Indiana Forest Alliance, 
                            Bloomington, IN; Tom Anderson, Save the 
                            Dunes Council, Michigan City, IN; Cliff 
                            Smedley, Stewards of the Land, Johnson, KS; 
                            Larry Zuckerman, Pure Water For Kansas, 
                            Program of the Kansas Wildlife Federation, 
                            Pretty Prairie, KS; Cheryl Bersaglia, Upper 
                            Cumberland Watershed Watch, McKee, KY; Liz 
                            Natter, Democracy Resource Center, 
                            Lexington, KY; Jan Jennemann, Mercer Water 
                            Watch, Salvisa, KY; Coleman Smith, Citizens 
                            Environmental Defense League, Bowling 
                            Green, KY; Judith D. Petersen, Kentucky 
                            Waterways Alliance, Munfordville, KY; 
                            Barbara Warner, Marion County Water Watch, 
                            Lebanon, KY; Jill Mastrototaro, Lake 
                            Pontchartrain Basin Foundation, Metairie, 
                            LA; Cyn Sarthou, Gulf Restoration Network, 
                            New Orleans, LA; Michael Kellett, RESTORE: 
                            The North Woods, Concord, MA; Pine DuBois, 
                            Jones River Watershed Association, 
                            Kingston, MA; Josh Kratka, National 
                            Environmental Law Center, Boston, MA; Ed 
                            Himlan, Tom Spiro, and Brandon Kibbe, The 
                            Massachusetts Watershed Coalition, MA; Kai 
                            Newkirk, E.A.R.T.H. (Ecologically Aware and 
                            Responsible Together at Hampshire), 
                            Amherst, MA; Laura Rose Day, Natural 
                            Resources Council of Maine, Augusta, ME; 
                            Ray Fenner, Superior Wilderness Action 
                            Network, St. Paul, MN; Nancy Clay Madden, 
                            MS Coast Audubon Society, Jackson, MS; 
                            Larry Smith, Pine Woods Audubon, 
                            Hattiesburg, MS; Judi Brawer, American 
                            Wildlands, Bozeman, MT; Joe Gutkoski, 
                            Montana River Action Network, Bozeman, MT; 
                            Jeff Juel, The Ecology Center, Inc., 
                            Missoula, MT; Robin Cunningham, Montana 
                            Fishing Outfitters Conservation Fund, 
                            Gallatin-Gateway, MT; Cold Mountain, Cold 
                            Rivers, Missoula, MT; Cesar Hernandez, 
                            Flathead Chapter of the Montana Wilderness 
                            Association, Kalispell, MT; Larry Campbell, 
                            Friends of the Bitterroot, Hamilton, MT; 
                            Elizabeth O'Nan, Protect All Children's 
                            Environment, Marion, NC; Dan Whittle, North 
                            Carolina Environmental Defense, Raleigh, 
                            NC; Cathie Berrey, Katuah Earth First!, 
                            Asheville, NC; Rick Dove, Neuse 
                            RIVERKEEPER, New Bern, NC; Marion Smith, 
                            Neuse River Foundation, New Bern, NC; 
                            Andrew George, Southern Appalachian, 
                            Biodiversity Project, Asheville, NC; Ginger 
                            Bush, Rockingham County Watershed 
                            Preservation Coalition, Inc., Colfax, NC; 
                            Hope C. Taylor, Clean Water Fund of NC, 
                            Asheville, NC; Meredith McLeod, Hickory 
                            Alliance, Chapter of the Blue Ridge 
                            Environmental Defense League, Greensboro, 
                            NC; Robert Perks, Pamlico-Tar River 
                            Foundation, Washington, NC; John Runkle, 
                            Conservation Council of NC, Raleigh, NC; 
                            Candice Carr, ASHE, Active Students for a 
                            Healthy Environment, Asheville, NC; Jean 
                            Spooner, NCSU Water Quality Group, North 
                            Carolina State University, Raleigh, NC; 
                            Chuck Rice, North Carolina Wildlife 
                            Federation, NC; Nancy L. Girard, New 
                            Hampshire Conservation Law Foundation, 
                            Concord, NH; Marie A. Curtis, New Jersey 
                            Environmental Lobby, Trenton, NJ; Harold E. 
                            Taylor, Pompeston Creek Watershed 
                            Association, Cinnaminson, NJ; Hugh Carola, 
                            The Fyke Nature Association, Ramsey, NJ; 
                            Julia M. Somers, Great Swamp Watershed 
                            Association, New Vernon, NJ; Karen R. 
                            Halliday, New Mexico Wilderness Alliance, 
                            Albuquerque, NM; Kerry Sullivan, Natural 
                            Resources Protective Association, Staten 
                            Island, NY; Day Star Chou, Flushing Greens, 
                            Green Party of NY, NY; Kathrn Martini and 
                            Tara Kehoe, HEART, Syracuse, NY; Gordon 
                            Douglas, Friends of the Great Swamp, 
                            Pawling, NY; Jennifer Nalbone, Great Lakes 
                            United, Buffalo, NY; Manna Jo Greene, 
                            Hudson Valley Sustainable Communities 
                            Network, Cottekill, NY; William Peltz, 
                            Capital District Labor-Religion Coalition 
                            Albany, NY; Erik Holland, Civilian 
                            Filibuster, Reno, NY; Jason Tockman, 
                            Buckeye Forest Council, Athens, OH; 
                            Margaret Ruff, Oklahoma Wildlife 
                            Federation, Oklahoma City, OK; Judy Guise-
                            Noritake, Pacific Rivers Council, Eugene, 
                            OR; John Taylor, Sisklyou Audubon Society, 
                            Grants Pass, OR; Michael Donnelly, Friends 
                            of Breitenbush Cascades, Salem, OR; 
                            Dominick Dellasalla, World Wildlife Fund, 
                            Klamath-Siskiyou Region, Ashland, OR; Tom 
                            Burns, Concerned Friends of the Winema, 
                            Chiloquin, OR; John E. Barry, Range Ecology 
                            Group, La Grande, OR; P. Sydney Herbert, 
                            Oregon Shores Conservation Coalition, 
                            Portland, OR; George Hutchinson, Rogue 
                            Group and Oregon Chapter Sierra Club, OR; 
                            Nina Belk Northwest Environmental 
                            Advocates, Portland, OR; Claudia McCue, 
                            Corvallis Area Forest Issues Group, Monroe, 
                            OR; Donald Fontenot, Cascadia Forest 
                            Alliance, Portland, OR; Shannon Wilson, 
                            Many Rivers Group Sierra Club, Eugene, OR; 
                            Ric Bailey, Hells Canyon Preservation 
                            Council, La Grande, OR; Tom Dimitre, 
                            Headwaters, Ashland, OR; Jim Britell, 
                            Kalmiopsis Audubon Society, Port Orford, 
                            OR; Nathan Tublitz, Eugene Natural History 
                            Society, Eugene, OR; Susan Jane Brown, 
                            Northwest Environmental Defense Center, 
                            Portland, OR; Lovenia Warren, Salmon for 
                            All, Astoria, OR; Jay Letto, Central 
                            Cascades Alliance, Hood River, OR; Lisa P. 
                            Brenner, Oregon Clearinghouse for Pollution 
                            Reduction, Portland OR; Mary Ann Lucking, 
                            CORALations, Inc. Carolina, PR; Kathy 
                            McDeed, South Carolina Forest Watch, 
                            Westminster SC; Wendy Smith, World Wildlife 
                            Fund--Southeast Rivers, Nashville, TN; 
                            Donald B. Clark, United Church of Christ, 
                            Network for Environmental & Economic 
                            Responsibility, Pleasant Hill, TN; Rev. 
                            Walter Stark, Cumberland Countians for 
                            Peace & Justice, Pleasant Hill, TN; Louise 
                            Gorenflo, Obed Watershed Association, 
                            Crossville, TN; Edward C. Fritz, Texas 
                            Committee on Natural Resources, Dallas, TX; 
                            Live Oak Alliance, Austin, TX; Theodore C. 
                            Mertig, Environmental Action, EI Paso, TX; 
                            James Facette, Center for Social Justice 
                            and Global Awareness, San Antonio, TX; 
                            Denise Boggs, Utah Environmental Congress, 
                            Salt Lake City, UT; Steve Moyer, Trout 
                            Unlimited, Arlington, VA; Jack Dunavant, 
                            Southside Concerned Citizens, Halifax VA; 
                            David Bookbinder, American Canoe 
                            Association, Springfield, VA; Tim SanJule, 
                            Rivanna Conservation Society, Palmyra, VA; 
                            Shenandoah Ecosystems Defense Group, 
                            Charlottesville, VA; Dave Muhly, Virginia 
                            Forest Watch, Wytheville, VA; Detta Davis, 
                            The Clinch Coalition, Coeburn, VA; Jackie 
                            Hanrahan, Coalition for Jobs and the 
                            Environment, Abingdon, VA; Richard Flint, 
                            Committee for Improvement of Dickenson 
                            County Inc., Clintwood, VA; Rick Parrish, 
                            Southern Environmental Law Center, 
                            Charlottesville, VA; Dick Austin, Devil's 
                            Fork Trail Club, Dungannon, VA; Christopher 
                            M. Kilian, Conservation Law Foundation, 
                            Montpelier, VT; Job C. Heintz, Vermont 
                            Natural Resources Council, Montpelier, VT; 
                            Wally Elton, Ascutney Mountain Audubon 
                            Society, Springfield, VT; Stephen Crowley, 
                            Vermont Chapter of the Sierra Club, South 
                            Burlington, VT; Jim Northup, Forest Watch, 
                            Montpelier, VT; Brady Engvall' Friends Of 
                            Grays Harbor, Westport, WA; Greg Wingard, 
                            Waste Action Project, Seattle, WA; David 
                            Jennings, Gifford Pinchot Task Force, 
                            Olympia, WA; Helen Ross, Seattle Audubon 
                            Society, Seattle, WA; Joe Scott. Northwest 
                            Ecosystem Alliance, Bellingham, WA; Dr. 
                            Herbert Curl, Jr, Seattle Audubon Society, 
                            Seattle WA; Susan Crampton, Methow Forest 
                            Watch, Twisp, WA; Timothy J. Coleman, 
                            Kettle Range Conservation Group, Republic, 
                            WA; Bill Hallstrom, Green-Rock Audubon 
                            Society, Beloit, WI; David J. Zaber 
                            Wisconsin's Environmental Decade, Madison, 
                            WI; Eric Uram, Sierra Club Midwest Office, 
                            Madison, WI; David J. Zaber. Western Lakes 
                            Wildlife Center, Monona, WI; Dr. Margaret 
                            Janes, Potomac Headwaters Resource 
                            Alliance, Mathias, WV; Mr. Francis D. 
                            Slider, Mountaineer Chapter of Trout 
                            Unlimited, Buckhannon, WV; Jim Summers, 
                            West Virginia B.A.S.S. Federation, 
                            Worthington, WV; Dianne Bady, Ohio Valley 
                            Environmental Coalition, Huntington, WV; 
                            Dan Heilig, Wyoming Outdoor Council, 
                            Lander, WY; Jonathan B. Ratner, Sublette 
                            Riders Association, Pinedale, WY; Danna 
                            Smith and Douglas Sloane, Dogwood Alliance, 
                            Southeastern United States.

                    INDIVIDUAL CLEAN WATER ADVOCATES

Wanda B. Stephens, Fayetteville, AR
Holly Ferguson, Fayetteville, AR
Moira Johnston Block and Alvin Lee Block, M.D., CA
Cory Chew, Los Angeles, CA
Cralan Deutsch, CA
Kirk Mobert, Point Arena, CA
Heidi Marshall, Point Arena, CA
Thomas Davis, Napa, CA
Lucy Kenyon, Santa Rosa, CA
Holly Mitten, Moss Beach, CA
Mary Knight, Willits, CA
Anthony Morris, Willits, CA
Talia Eisen, Los Angeles, CA
Kathie Lech, Willits, CA
Fred and Phyllis Mervine, Ukiah, CA
Elise Kelley, Davis, CA
Rainer Hoenicke, Napa, CA
David H. Walworth, MD, Soqiel, CA
James Woods, Penn Valley, CA
Diane Solomon, C.P.A., San Jose, CA
Meade Fischer, Corralitos, CA
Eric Sunswheat, Potter Valley, CA
Douglas F. Wallace, Ft. Collins, CO
Tom Dickinson, Boulder, CO
Estelle Gahn, Fort Collins, CO
Daniel Mandelbaum, Washington, DC
Benna Kolinsky, Washington, DC
Marc Goncher, Atlanta, GA
Jason Barringer, Atlanta, GA
Ernest L. Horton, Marietta, GA
Renuka Dhungana, Marietta, GA
Marion B. Hilliard, Orange Park, FL
Chris Norden, Moscow ID
Monte D. Wilson, Potlatch, ID
Leslie A. Manskey, Bloomington, IL
Robert E. Rutkowski, Esq., Topeka, KS
Tina Montgomery, Louisville, KY
Carrie DeJaco, Louisville, KY
Melanie Hurst, Louisville, KY
Owen Muise, Plymouth, MA
Cynthia S. Brown, PhD., Saint Paul, MN
J.F.Puckett, MD, Hattiesburg, MS
Tom Mattison, Jacksonville, NC
James L. Conner II, Durham, NC
Peter and Margaret Schubert, Durham, NC
John Colvin, Albuquerque, NM
Karen McCue, Albuquerque, NM
Colin Sillerud, Albuquerque, NM
Dorothy D. Meyerink, Henrietta, NY
Joel Clark Mason, Chappaqua, NY
Mr. Bobbie D. Flowers, New York, NY
Carol Witbeck, Clackamas, OR
Peter M. Lavigne, Portland, OR
Megan Kemple, Eugene, OR
John Thornton, Grants Pass, OR
Ann Easterly, Oregon City, OR
Connie Earnshaw, Portland, OR
Catherine Thomasson, MD, Portland, OR
Kay Ryan Biondo, Waldport, OR
Shirley L. Brown, Sublimity, OR
Richard Katz Do, East Stroudsburg, PA
Kim Danley, Salt Lake City, UT
Marilyn Dinger, Kaysville, UT
Judy Strang, Monroe, VA
Peter H. Richardson, Norwich, VT
Dave Robinson, Curlew, WA
Marva E. Schuelke, Everett, WA
Liz Marshall, Mount Vernon, WA
Carol Melton, Seattle, WA
Jerry Burke, Petersburg, WV
Lou Schmidt, Bristol, WV
Vince Dudley, Charleston, WV
Charles ``Larry'' Harris, Morgantown, WV
      
                               __________

                 STATEMENT OF AMERICAN TREE FARM SYSTEM
                   [ROBERT SIMPSON AND RALPH POSNER]

  MEMBERS OF NATION'S LARGEST FOREST OWNER NETWORK CONVINCED EXISTING 
   SYSTEM PROTECTS WATER QUALITY, FEAR NEW RULES MIGHT ADD TO SPRAWL
    WASHINGTON, DC.--MEMBERS OF THE 66,000-STRONG AMERICAN TREE FARM 

System today appeared before a hearing of the U.S. Senate Committee on 
Environment and Public Works to voice opposition to an EPA proposal 
that would greatly affect forest management. If enacted, the proposal 
would regulate forestry activities as a ``point source'' of pollution, 
equating forestry with sewage disposal and reversing nearly three 
decades of policy under the Clean Water Act. Furthermore, the proposal 
would shift regulation to the Federal level despite years of success 
and cooperation at the State level.
    On behalf of Tree Farm's 66,000 family forest owners, Tom Thomson, 
a New Hampshire Tree Farmer, testified, ``The EPA proposal will place 
an undue burden on small landowners. The result will not lead to added 
environmental protection, but may encourage family tree farmers among 
the best nation's forest stewards--to sell off their land to 
developers.''
    Under EPA's proposed rule changes, landowners may be required to 
obtain a Federal permit for almost all forest management activities. 
The proposed permitting process could lead to significant and 
unnecessary administrative delays, making it harder for small family 
forest owners to practice sustainable forestry.
    EPA studies indicate that forestry presently contributes only a 
negligible fraction of pollution to streams and rivers. This tiny 
percentage is growing even smaller--under existing programs--as a 
result of responsible forest owners who follow State best management 
practices aimed at protecting watersheds and water quality. Forestry is 
not included in EPA's list of leading sources of impairment to lakes, 
reservoirs, estuaries or shoreline waters.
    ``Water quality is improving because forest landowners, foresters 
and logging professionals are serious about best management 
practices,'' said Thomson. In fact, 47 States have adopted best 
management practices for forestry. On average, individual compliance 
for these practices is almost 90 percent.
    ``What's remarkable is that the current system we have now is 
working,'' said Bob Simpson, national director of the American Tree 
Farm System. ``There's no reason to add another layer of regulation. 
Responsible forest owners know how to protect water quality, and 
they're doing it.''
                                 ______
                                 
                     Society of American Foresters
 FOREST SCIENTISTS VOICE OPPOSITION TO EPA'S WATER QUALITY REGULATIONS
                          (BY MICHAEL GOERGEN)

    Washington, DC--At a press briefing today, the Society of American 
Foresters (SAF) once again voiced its strong opposition toward an EPA 
proposal that would categorize forestry activities on private forest 
lands as a ``point source'' of pollution. The hotly contested EPA 
proposal, which would in essence equate forestry with sewage disposal, 
is being examined by the U.S. Congress during a series of hearings on 
Capitol Hill.
    ``Professional foresters have been working to improve water quality 
from forests for over 100 years. SAF supports efforts aimed at reducing 
nonpoint source pollution from forestry operations,'' according to Dr. 
George Ice, a research hydrologist representing SAF. ``However, SAF is 
opposed to the regulatory changes proposed for forestry because the 
science EPA used to draft the proposal is inadequate, the current 
programs in place are successful, and the costs of EPA's proposal would 
be astronomical.''
    EPA's proposed rule fails to acknowledge that managed forests can 
benefit water quality. For example, officials in New York State 
recently decided that the best way to protect the water supply of New 
York City was by managing forests in the Catskill Mountains. Clearly, 
the EPA cannot make an informed decision about the impact of forestry 
activities on water quality without understanding that properly managed 
forests preserve water quality.
    ``SAF recognizes that if forest management is conducted improperly 
it can be a problem for water quality, which is why we are working to 
ensure that every forest management operation has involvement by 
forestry professionals,'' says Dr. Ice. ``Water quality in forests 
would be better served by fully supporting existing nonpoint source 
control programs. We should be rewarding landowners for high quality 
forest management, not burdening them with excessive regulations, red 
tape, and high costs.''
                                 ______
                                 
                       FORESTRY AND WATER QUALITY

     Forests cover one-third of this nation's land, are the 
source for 80 percent of our freshwater, and contribute to a mere 7 
percent of impaired waterbodies.
     Best Management Practices (BMPs) are designed to minimize 
pollution impacts from various forestry activities. Landowners comply 
with BMP's 85 to 90 percent of the time. Repeated assessments show 
improving compliance.
     Every State with significant commercial forestry 
operations has a forest nonpoint source control program, some of these 
are voluntary and others are regulatory.
     In 1996, EPA dropped silviculture from its list of the 
seven leading sources of river and stream impairment.
     The largest source of pollution in estuaries came from 
industrial discharges (56 percent of the total), followed by urban 
runoff, municipal point sources, upstream sources, and agriculture. 
Forestry is a very minor source compared to other pollution sources.
     The largest source of pollution to ocean shorelines was 
urban runoff (55 percent), followed by septic systems, municipal sewer 
discharge, industrial pollution, and land disposal of wastes. Again, 
forestry is a minor problem.
     Officials in New York State recently decided that the best 
way to protect the water supply of New York City was by managing 
forests in the Catskill Mountains.
     It has cost an estimated $5 million to conduct a TMDL 
assessment on just one river South of Portland, Oregon. The assessment 
recognized phosphorus as a problem in the watershed, and set limits to 
reduce phosphorus levels. However, those levels are not achievable 
because the basic geology of the area causes the problem, not land 
management.
     A 1998 Washington Department of Ecology (DOE) report (DOE 
1998) estimated that it would cost $6.7 million annually for 15 years 
to conduct the 666 TMDLs for waterbodies listed as water quality 
limited in 1996. This will result in reduced efforts in other 
environmental programs including:
         Lreduced nonpoint source technical assistance to 
        landowners and policy development
         reduced statewide and regional watershed reports and 
        coordination
         reduced timber practice watershed analyses and policy 
        development
         reduced water quality assessments and coordination 
        with tribes
         reduced technical assistance on lake protection and 
        restoration
         reduced technical assistance on groundwater protection
         reduced aquatic pesticide management
                                 ______
                                 
                                                    March 21, 2000.
Hon. Rod Grams,
U.S. Senate,
Washington, DC.

    Dear Senator Grams: The Minnesota Forestry Association (MFA) is one 
of the oldest conservation organizations in Minnesota and the only 
organization dedicated exclusively to the stewardship of all forest 
resources in the State. Our membership is made up almost entirely of 
non-industrial private forest landowners that endorse a broad spectrum 
of forest management objectives. Non-industrial private forest 
landowners own over 40 percent of the forestland in Minnesota.
    I am writing on behalf of our members (nearly 1000 individuals) to 
request that you do not support the Environmental Protection Agency's 
attempt to declare silvicultural practices as ``point sources'' of 
pollution and regulate forest management activities under the National 
Pollution Discharge Elimination System (NPDES).
    While MFA certainly supports and promotes responsible forest 
management to protect and improve water quality, we do not agree there 
is a need for this additional burden of unnecessary Federal regulation 
and expense on Minnesota's non-industrial private forest landowners. 
Studies show that forest management activities in Minnesota contribute 
very little to the pollution of our water resources. More importantly, 
Minnesota has very effective voluntary programs in place to protect 
water quality. These include extraordinarily high voluntary compliance 
with water quality and wetland best management practices, the 
development and implementation of new timber harvesting and forest 
management guidelines that also address water quality, and many 
continuing education opportunities for both landowners and resource 
managers.
    Thank you for considering our request. We are counting on your 
support to prevent this unnecessary and expensive new Federal 
regulation.
            Sincerely,
                                         Terrance J. Weber,
                                                Executive Director.
                                 ______
                                 
                    Kentucky Forest Industries Association,
                                                    March 21, 2000.
Hon. Jim Bunning,
U.S. Senate,
Washington, DC.

    Dear Senator Bunning: As Chairman of the State Tree Farm Committee 
our organization represents 937 tree farmers which manage over 242,000 
acres. All of these forest landowners practice sustainable forestry and 
are certified by professional foresters as members of the American Tree 
Farm System. These forest landowners are exemplary stewards of the 
forest and practice responsible forest management as members of the 
most successful voluntary forest conservation program in the United 
States.
    On behalf of the Tree Farmers in Kentucky I would like to make you 
aware of our opposition to EPA changing the definition of silviculture 
from a nonpoint source to a point source of pollution. This would 
require permits for forests activities and has the potential to stop 
forest management and destroy our grooving wood industry in Kentucky 
State studies have shown that less than 3 percent of non-point source 
pollution originates from logging and forest management activities. In 
addition this small amount of pollution has been addressed by the State 
with the passage of the Forest Conservation Act in 1998 which makes 
silviculture best management practices for water quality mandatory 
starting in July of 2000.
    Current regulations more than address potential pollution problems 
related to silviculture. It would make much better sense to allow State 
regulations to address problems and increase EPA 319 grant finding for 
voluntary programs to educate and inform private forest landowners. I 
appreciate the opportunity to comment on this important issue and would 
be glad to supply any additional information on this subject.
            Sincerely,
                                              Steve Rogier,
                                       Kentucky Tree Farm Chairman.
                                 ______
                                 
                        Montana Forest Owners Association, 
                               Montana Tree Farm Committee,
                                         Evaro, MT, March 22, 2000.
Hon. Max Baucus,
U.S. Senate,
Washington, DC.

Subject: Proposed Revisions to the Water Quality Planning and 
Management Regulation

    Dear Senator Baucus: I am current chair of the Montana Tree Farm 
Committee and president of the Montana Forest Owners Association. 
Together, our organizations directly represent 400 nonindustrial 
private forest landowners in Montana who practice sustainable forestry; 
indirectly, we speak for thousands more who are concerned with good 
forest stewardship on their forest lands.
    We are committed to clean water goals identified in Section 303(d) 
of the Clean Water Act. We support our State's Total Maximum Daily Load 
process, which successfully addresses many of the issues identified in 
EPA's proposed rules. We also support Montana's Best Management 
Practices program and Streamside Management Zone rules, both of which 
evaluate and ensure the effectiveness of silvicultural practices in 
addressing key water quality issues.
    However, we do not support the proposed EPA changes, which seek to 
define forest management activities as point source discharges. But we 
do support improving water quality through increased flooding of 
Section 319, so that voluntary programs may be developed to educate and 
inform nonindustrial private forest landowners.
    While all the nuances of the proposed rule changes are unclear, the 
stark implication is that, for the first time, all forest management 
activities undertaken by Montana landowners are subject to Federal 
regulations imposed by the EPA. This EPA ruling could eventually 
require that landowners obtain point source discharge permits for all 
silvicultural practices--including activities ranging from timber 
harvest, to thinning, to pruning, to slash disposal, to cutting the 
annual family Christmas tree.
    Not only does this rule legitimize a high level of Federal 
intrusion into private forest land management, required permits would 
add significant expense and delay to implementing forest management 
plans while inhibiting many smaller landowners from even trying to 
manage their forests. Further, if Federal permits are required prior to 
conducting such forestry activities, individual citizens and 
environmental groups will be able to challenge (either seriously or 
frivolously) the issuance of these permits in Federal court. 
Additionally, permitting may require Federal examination of private 
lands to ensure that no possible threatened species or their habitats 
exist on that land.
    The EPA suggests that this rule will be implemented only on a case-
by-case basis. However, historic enlargement and imposition of Federal 
regulations and the wide spread use of the court system by political 
interest groups suggests otherwise. Regardless of how the rule is 
interpreted now, it constitutes a very large foot of Federal control in 
the very small, vulnerable, and increasingly marginalized door of 
private property roots.
    In the final analysis, the unintended consequences of such 
rulemaking are poorly understood by environmental and land management 
agencies. If the ultimate result of such heavy-handed regulations is to 
dissuade nonindustrial private forest landowners from even trying to 
manage their forests, then we can say good-bye to sustainable forestry 
on hundreds and thousands of significant forest acreages in Montana and 
millions of acres across the country. The implications of 
``nonmanagement'' are not pretty. Private lands will face increased 
wildfire potential (together with increased potential for loss of human 
life in the wildland-urban interface) and insect and disease 
infestations; further, landowners will be provided with yet another 
incentive to subdivide and develop increasingly scarce open spaces and 
forest land.
    We believe that EPA's proposed rules, defining all silvicultural 
activities as point source discharges, are ill-advised and 
counterproductive. The regulatory bureaucracy mill be enlarged and 
sustainable forestry practiced, especially on small forest acreages, 
will be harmed.
    Thank you for this opportunity to comment on this important issue.
            Sincerely,
                                              Thom Liechty,
                         Chair, Montana State Tree Farm Committee; 
                      President, Montana Forest Owners Association.
                                 ______
                                 
                                              Freeman Farm,
                                          Knox, PA, March 21, 2000.
Hon. Rick Santorum,
U.S. Senate,
Washington, DC.
Re: EPA's Proposed Federal Water Regulation

    Dear Representative Peterson: You received a copy of my letter of 
January 12, 2000 directed to Ms. Carol Browner, Administrator in 
opposition to the EPA's proposed Federal water regulations under 
section 303(d) of the Clean Water Act. Thanks for your reply of 
February 9, 2000. We have been advised that of the nearly 30,000 
comments sent to EPA regarding their proposed ruling, roughly 70 
percent related to the forestry issue The Tree Farm community 
represented approximately 14 percent of the total.
    Joan and I are one of the 1378 Pennsylvania's Tree Farmers and 
65,000 National Tree Farm forest landowners whose practices are 
certified as sustainable by professional foresters. Along with other 
Tree Farmers in the State we support clean water. These forest 
landowners are exemplary stewards upholding nearly 60 years of 
responsible forest management and members of the most successful 
voluntary conservation program in the history of United States.
    We ask that you say ``NO'' to the EPA's proposed rule charge and 
permitting forestry activities on private lands. Please say, ``YES'' to 
improving water quality through increased finding of Section 319, so 
that voluntary programs (like the successful American Tree Farm System) 
may educate and inform private forest landowners.
            Sincerely,
                                         George W. Freeman,
                    1990, 1997 Pennsylvania Tree Farmer of the Year
                             1998 National Tree Farmer of the Year.
                                 ______
                                 
Hon. Wayne Allard,
U.S. Senate,
Washington, DC.

    Dear Senator Allard: I am the chairman of the Colorado State Tree 
Farm Committee. We represent over 300 forest landowners who actively 
practice sustainable forestry under the guidance of the Colorado State 
Forest Service and other professional foresters. We support the use of 
the Best Management Practices for the Protection of Water Quality 
developed by the Colorado State Forest Service.
    Our members advocate the education of private forest landowners in 
the use of responsible forest management practices. We are affiliated 
with the American Tree Farm System, which has a sixty-year history of 
responsible forest management throughout the United States. Tree 
Farmers have established the most successful voluntary forest 
conservation program in the history of this country.
    I am writing today to ask for your help in preventing the 
Environmental Protection Agency from making a big mistake. The EPA is 
proposing revisions to the Total Maximum Daily Load (TMDL) and National 
Pollutant Discharge Elimination System (NPDES) permit programs. We 
believe that these changes will shift regulation of forest management 
activities from State-level to Federal supervision.
    These revisions will require Colorado to submit costly 
implementation plans for every TMDL. Worse still, they may alienate 
many forest landowners who, through our efforts and those of the 
Colorado State Forest Service, have voluntarily chosen to practice 
responsible forest management on their property.
    I urge you to review and reject EPA's proposed revisions and then 
support improving water quality through increased funding of Section 
319, so that voluntary programs (like those of the American Tree Farm 
System and the Colorado State Forest Service) may educate and inform 
private forest landowners.
    Thank you for considering our suggestion.

                        Colorado State Tree Farm Committee:
                                           Wes Rutt, Chair,
                                           Michael Hughes, Secretary,
                                           Wayne Baasch,
                                           Ray Ramos,
                                           Gary Hiner,
                                           Ray Mehaffey, Vice Chair,
                                           Joel Stewart, Treasurer,
                                           Raul Bustamante,
                                           John Smethurst,
                                           Jan Hackett.
                                 ______
                                 
                                       Charlane Plantation,
                                                    March 20, 2000.
Senator Michael Crapo,
U.S. Senate,
Washington, DC.

    Dear Senator Crapo: As the current National Outstanding Tree 
Farmers as named by the American Forest Foundation and the American 
Tree Farm System, we represent some 65,000 Tree Farmers across our 
country managing over 25,000,000 forested acres. We are writing you 
about our concern for one of the most important issues ever to face us. 
I'm sure that you are aware of the issue of Total Maximum Daily Loads, 
or TMDL's, as they pertain to forestry. Mainly, that forestry 
activities have in the past been considered a non-point source of 
TMDL's, and that the EPA is now seeking to make forest activities a 
point-source. It is certainly no secret that all of the American Tree 
Farmers in our country have always supported clean water, air, and 
sustainable forestry practices, and therefore stand as shining examples 
of good stewards of the land. As you may be aware, by it's own 
admission the EPA has determined that forestry has contributed less 
that 7 percent of the levels of TMDL's. In 1996, EPA dropped forestry 
from it's list of leading sources of river and stream impairment. It is 
therefore absolutely shocking and staggering to all of us in the 
forestry community that the EPA would seek to change the current status 
of forestry activities. This change amounts to punishing all of the 
private landowners that supply our country with the all-important 
resource of wood for the good stewardship practices that we have been 
following for nearly 60 years. The American Tree Farmers stand as one 
of the finest group of practicing environmentalists in the world. As 
private landowners, we are and always have been concerned with sound 
environmental practices, and to be subjected to this outrageous 
regulation is more than a slap in the face for us. Please say NO to 
this unreasonable rule change that would cause permitting of forestry 
activities on our private lands. Please say YES to improving water 
quality through voluntary programs like the successful American Tree 
Farm System, that educate and inform private forest landowners. Thank 
you for your kind attention to this matter.
            Sincerely,
                               Chuck and Rose Lane Leavell,
                      National Outstanding Tree Farmers, 1999-2000.
                                 ______
                                 
    Statement of Sharon Buccino, Senior Attorney, Natural Resources 
                            Defense Council
    Mr. Chairman and members of the committee: Thank you for the 
opportunity to talk with you today about critical steps needed to 
address the more than 20,000 water bodies across the country that still 
do not meet water quality standards. My name is Sharon Buccino. I am a 
Senior Attorney in the public lands program of the Natural Resources 
Defense Council (NRDC). NRDC is a non-profit organization with over 
400,000 members across the country. NRDC's members depend on clean 
water to enhance their quality of life and protect their health.
    NRDC supports EPA's efforts to revive the Clean Water Act's (CWA) 
Total Maximum Daily Load (TMDL) program. We also support EPA's proposal 
to eliminate the current regulatory exemption for silviculture from the 
CWA's National Pollutant Discharge Elimination System (NPDES) permit 
requirements. I will make four main points in my testimony today. 
First, I want to clarify that EPA's silviculture proposal applies only 
to point sources. Second, I will provide some examples demonstrating 
the need for the EPA's new regulations--where silviculture point 
sources are causing significant water pollution and therefore an NPDES 
permit is appropriate. Third, I will explain EPA's legal authority for 
eliminating the silviculture exemption. Fourth, I will explain why non-
point sources should be included in the TMDL process.
    In 1972, Congress recognized that technology-based controls alone 
would not deliver clean water to the American public. Congress 
established the TMDL program to identify those water bodies which did 
not meet water quality standards and to develop a plan to restore the 
water quality of these impaired waters. Until recently, the TMDL 
program was largely ignored. Citizens across the country had to bring 
suit to force EPA and States to begin to address their obligations 
under the program. Yet, despite this effort, almost 40 percent of the 
Nation's waters assessed by States still do not meet water quality 
standards. These polluted waters include approximately 300,000 miles of 
river and shoreline and 5 million acres of lakes.
    More needs to be done by EPA and the States if the TMDL program is 
to succeed in cleaning up our nation's waters. EPA has proposed changes 
to the TMDL regulations, as well as a few changes to the regulations 
for point source discharge permits under the NPDES program that it 
believes will improve the implementation of the program. NRDC supports 
some aspects of the proposed rule and opposes others, but we strongly 
support effective implementation of the TMDL program, most of which is 
already in the existing statute and regulations, to clean up impaired 
waters.
    One important piece of EPA's proposed rule changes is the proposal 
to eliminate the current exemption that silvicultural point sources 
enjoy from NPDES permit requirements. Logging and logging roads degrade 
water quality in many parts of the country. Numerous scientific studies 
document the harm to water quality and aquatic ecosystems caused by 
logging and logging roads. Current State practices fail to address 
adequately water pollution from logging activities. Where a 
silviculture activity meets the statutory definition of point source 
and it is causing significant water pollution, there is no excuse for 
not requiring a discharge permit. Timber companies should not be exempt 
from CWA requirements that other industries must comply with. EPA has 
appropriately decide to eliminate the special carve-out from CWA 
requirements that timber companies now enjoy.
    The American public has already waited almost 30 years for 
effective implementation of the TMDL program. NRDC has urged EPA to 
move forward expeditiously with new regulations that will make the TMDL 
program more efficient and effective. We hope Congress will not 
interfere with this progress. In particular, we urge Congress not to 
adopt the legislation proposed by Senators Lincoln and Hutchinson. I 
have with me today a letter signed by over 250 organizations and 
citizens across the country opposing the exemptions for timber 
companies from CWA requirements contained in S. 2041 and S. 2139. I 
have attached this letter as Attachment 1 to my testimony and ask that 
it be entered into the record.

   I. EPA'S SILVICULTURE PROPOSAL DOES NOT AFFECT NON-POINT SOURCES.

    Significant misunderstanding exists about the scope of EPA's 
silviculture proposal. It does not affect non-point sources. The 
proposed EPA regulations seek to facilitate better implementation of 
the TMDL program by amending existing regulatory exemptions for certain 
silvicultural point sources to require, on a case-by-case basis, the 
issuance of NPDES permits by EPA or delegated States where necessary to 
implement wasteload allocations identified in the TMDL process. The 
Clean Water Act only requires NPDES permits from point sources. EPA's 
proposal does nothing to require permits from non-point silvicultural 
activities. The proposal simply eliminates the blanket exemption from 
the definition of point source that most silvicultural activities have 
enjoyed pursuant to regulation.
    The only silvicultural activities potentially affected by EPA's 
proposal are those that fall within the statutory definition of point 
source. The Clean Water Act defines ``point source'' to mean:

        any discernible, confined and discrete conveyance, including 
        but not limited to any pipe, ditch, channel, tunnel, conduit, 
        well, discrete fissure, container, rolling stock, concentrated 
        animal feeding operation, or vessel or other floating craft, 
        from which pollutants are or may be discharged. This term does 
        not include agricultural stormwater discharges and return flows 
        from irrigated agriculture.\1\
---------------------------------------------------------------------------
    \1\ 33 U.S.C. Sec. 1362(14).

    Activities that do not involve a confined and discrete conveyance 
are completely outside the scope of EPA's silviculture proposal.
    EPA's silviculture proposal does not even appear to cover all point 
sources. After having identified the set of activities that would be 
considered ``point sources'' under the Clean Water Act, EPA only 
proposes to consider requiring an NPDES permit where: (1) those 
activities affect an impaired water body, that is a stream, lake or 
estuary that fails to meet water quality standards; (2) EPA has written 
a TMDL, presumably as a result of a State failure to do so; and (3) a 
specific finding has been made that the activity contributes to a 
violation of water quality or is a significant contributor of 
pollutants to waters of the United States. Where such conditions exist, 
it is entirely logical and appropriate to use the NPDES system as the 
mechanism to ensure that appropriate pollution controls are adopted by 
those sources.
    EPA's proposal will not affect those silviculture operations that 
are taking appropriate steps to prevent water pollution. If a timber 
company is following all the best management practices (BMPs) adopted 
by a State and those BMPs are effective in preventing water pollution, 
EPA's proposal will not apply. In this case, either the affected water 
body will not be in violation of water quality standards or, if the 
water body is impaired, other sources are the problem. Both the 
preamble and the regulatory text of EPA's proposal clearly State that 
the Agency will only consider requiring an NPDES permit from a 
silviculture activity not previously regulated if the activity is a 
significant source of a water pollution problem.
    Unfortunately, there are many places where silviculture operators 
are not taking the steps necessary to prevent water pollution. It is 
these operations that are the subject of EPA's proposal. This is why 
EPA's silviculture proposal is an important step toward delivering 
clean water to the American public.

    II. SILVICULTURAL ACTIVITIES CONTRIBUTE SIGNIFICANTLY TO WATER 
                 POLLUTION IN MANY PARTS OF THE COUNTRY

    Numerous States have identified various silvicultural activities as 
sources contributing to the water quality impairment of water bodies 
listed under Section 303(d) of the Clean Water Act. In the 32 States 
that report source information to EPA as part of their 303(d) lists, 
approximately 350 are impaired as a result of silvicultural activities 
including harvesting and logging road construction/maintenance. See, 
EPA Access97 TMDL/303(d) Data base, summary table attached as 
Attachment 2. In Montana alone, 193 of the listed water bodies are 
impaired as a result of ``silviculture.'' Id. An additional 33 water 
bodies are affected by logging roads and maintenance. Id. Still another 
30 water bodies are listed because of harvesting. Id.
    Of the remaining States that do not report source information in 
their 303(d) lists, significant logging occurs in several. These States 
include Idaho, Washington, Oregon, Colorado, Kentucky, and Vermont. 
Information gathered from the Idaho Department of Environmental Quality 
indicates that of 731 water quality limited stream segments on the 
State's 1998 303(d) list, 573 are listed for sediment. Of these, at 
least 220 are listed primarily because of silvicultural practices on 
public land. Senator Crapo, I have brought a map of Idaho that vividly 
demonstrates the extent of the problem in your State. The map is 
attached as Attachment 3.
    Furthermore, in many cases, logging activities have a detrimental 
impact on water quality even though the effect may not result in the 
violation of a water quality standard. State 303(d) lists only include 
those water bodies where violations of water quality standards have 
occurred. The list of streams and other waters harmed by logging 
activities is much longer than the list of affected 303(d) water 
bodies.
    Numerous scientific studies document the harm to water quality and 
aquatic ecosystems caused by logging and roads. Roads and logging can 
significantly degrade stream ecosystems by introducing high volumes of 
sediment into streams, changing natural streamflow patterns, and 
altering stream channel morphology. NRDC has recently published an 
annotated bibliography that provides an overview of primary research, 
almost all from peer-reviewed journals, documenting the adverse 
environmental impacts of roads and logging. NRDC, End of the Road: The 
Adverse Ecological Impacts of Roads and Logging, A Compilation of 
Independently Reviewed Research (December 1999). A few of the many 
studies summarized in the NRDC bibliography are discussed in more 
detail below. The chapter relevant to water quality is attached as 
Attachment 4.
    In one study, scientists found that logging activities in steep and 
high-rainfall forests of Oregon, Washington, British Columbia and 
Alaska accelerated erosion rates thus increasing sedimentation rates of 
streams. Chamberlin, T.W., R.D. Harr and F.H. Everest. 1991. Timber 
harvesting, silviculture, and watershed processes. American Fisheries 
Society Special Publication 19: 181-205. Sedimentation and altered 
stream structure reduced available fish cover and food supplies. Id. In 
another, scientists found the volume of fine sediment present in 
streams increased in direct proportion to logging in the watershed and 
stream crossings by roads. Eaglin, G.S. and W.A. Hubert. 1993. Effects 
of logging and roads on substrate and trout in streams of the Medicine 
Bow National Forest, Wyoming. North American Journal of Fisheries 
Management 13: 844-846. Still another study found that 30 years after 
clearcut logging occurred, average and peak stream flows in the 
watershed studied were still higher than pre-logging flows. Troendel, 
C.A. and R.M. King. 1985. The effect of timber harvest on the Fool 
Creek Watershed, 30 years later. Water Resources Research 21: 1915-
1922. Another study found that forest road erosion was a source of fine 
sediment in stormflow runoff, even after mitigation measures. Swift 
Jr., L.W. 1984. Soil losses from roadbeds and cut and fill slopes in 
the Southern Appalachian Mountains. Southern Journal of Applied 
Forestry 8: 209-216. In still another study, scientists found that 
forest roads extended the natural channel network, initiated new 
channels, and increased the susceptibility of steep slopes to 
landsliding. Montgomery, D.R. 1994. Road surface drainage, channel 
initiation, and slope instability. Water Resources Research 30: 1925-
1932. This study specifically found that road cuts intercepted 
subsurface flow and diverted it to roadside ditches. Id.

III. CURRENT STATE PRACTICES FAIL TO ADDRESS ADEQUATELY WATER POLLUTION 
                     FROM SILVICULTURAL ACTIVITIES

    State forest practices have not adequately addressed water 
pollution from logging, road construction and other silvicultural 
activities. Logging on State and private lands is generally governed by 
State forest practices. The quality of State forest practices varies 
widely across the country. While many States have developed some kind 
of best management practices (BMPs) for logging, the rigor of these 
operational guidelines varies from State to State. In most States, 
compliance with BMPs is merely voluntary. Even in States where BMPs are 
enforceable, State agencies lack the resources to monitor adequately 
compliance with the BMPs or their effectiveness in protecting water 
quality. Furthermore, few States require logging operators to provide 
prior notice either to the State or to the public of timber harvesting. 
Consequently, States have little or no opportunity to limit the 
environmental damage before it occurs.
    In Tennessee, for example, non-compliance with the State's 
voluntary BMPs has led to significant environmental damage. At one 
highly visible cut along U.S. Interstate 40, State inspectors 
responding to numerous citizen complaints found that logging operations 
only complied with 9 percent of the BMPs. Large volumes of sediment 
have washed into numerous small streams from the site's steep, denuded 
hillsides, eventually ending in the Tennessee River and the Buffalo 
River. Dogwood Alliance, Report on the Humphreys County, Mid-South Cut 
(January 2000). According to the Dogwood Alliance, a non-profit citizen 
organization, over 98 percent of all soil erosion on forested lands in 
Tennessee can be traced to roads, skid trails, and log landings. Id.
    I have brought a couple of photos with me that illustrate quite 
vividly the damage logging practices can cause. One is a photograph of 
a skid trail at the Humphreys County, Mid-South cut. The second is a 
photograph of the stream below the skid trail. It is this kind of 
activity and damage that make EPA's silviculture proposal necessary. 
When logging occurs in a way that does not cause these kinds of 
results, EPA's proposal does not apply. When logging occurs in way that 
does cause these results, a permit is entirely appropriate to prevent 
the harm. I think few would disagree that the skid trail pictured here 
is a ``discernible, confined and discrete conveyance . . . from which 
pollutants are discharged'' into a stream. Since the skid trail falls 
within the CWA's definition of point source, the Act requires the 
timber operator to obtain an NPDES permit before discharging any 
sediment or debris into the stream below. These photographs are 
attached as Attachment 5.
    In West Virginia, water pollution from logging activities goes 
unregulated and timber companies are fighting to stay free from 
environmental controls. See, Ward, K., ``Timber, farming fight to 
remain unregulated,'' Charleston Gazette (August 27, 1999). Compliance 
with the State's BMPs is effectively voluntary. As a result, the BMPs 
are frequently not followed and logging and road construction has led 
to significant degradation of water quality. ``Timber has few 
regulations,'' Charleston Gazette (November 25, 1996). Even where the 
BMPs are followed, significant environmental damage can result. At one 
timber cut in Monongalia County, for example, the logger mulched the 
road as required by the State BMPs, but the road still washed away 
resulting in sediment buildup in the nearby stream. Id.
    Virginia's logging guidelines are also voluntary. While the 
Virginia Department of Forestry has the authority to fine loggers if 
they pollute a stream or river, the agency has rarely done so. The 
Department's director, Jim Garner, describes the Department of 
Forestry's philosophy as a ``soft approach'' to making sure loggers do 
not pollute the State's rivers and streams. See, Nixon, R. and M. 
Hudson, ``Foresters Take Low-Key Approach,'' Roanoke Times (November 
23, 1998). In fact, evidence shows widespread noncompliance. An annual 
audit of logging sites by the Department found more than 90 percent 
failed to meet all the agency anti-erosion guidelines. Id. One forest 
warden has described the impact of unregulated forest practices on 
water quality as follows: ``I've seen streams completely destroyed. 
Afterwards, you don't know where the stream channel was. It's all a big 
muck.'' Id.
    Significant damage to water quality from logging occurs even in 
States with arguably the best forest practices, like California and 
Oregon. In California, over 30 water bodies are listed as impaired 
because of logging or logging roads. A recent report by an independent 
scientific review panel concluded that California's forest practice 
rules fail to protect beneficial uses of the waters--fisheries. Report 
of the Scientific Review Panel on California Forest Practice Rules and 
Salmonid Habitat, prepared for The Resources Agency of California and 
the National Marine Fisheries Service (June 1999). In particular, the 
report documents the failure of California's forest practice rules to 
protect anadromous salmonid populations. Id. at i. Sedimentation and 
turbidity from roads and logging have interfered with salmon spawning. 
Id. at 12. In reviewing California's Coastal Nonpoint Pollution Control 
Programs, the National Oceanic and Atmospheric Administration and EPA 
explicitly found that ``additional [forestry] management measures are 
necessary in order to attain and maintain water quality standards.'' 
EPA/NOAA, Coastal Zone Act Reauthorization Amendments (CZARA) Findings 
(July 1998), notice of availability published in 63 Fed. Reg. 37094 
(July 9, 1998).
    Although revised in 1994, the Oregon Forest Practices Act and its 
implementing regulations fail to ensure attainment of water quality 
criteria, meet antidegradation requirements or fully protect aquatic 
species, including imperiled salmon and trout. In data collected 
pursuant to Section 305(b) of the CWA, Oregon's Department of 
Environmental Quality conservatively estimates that over 25 percent of 
all stream miles now listed for temperature impairment are on private 
forestlands. This is true despite general compliance with current 
standards and guidelines. The current policies do not restrict riparian 
harvest adequately to ensure full protection of salmonid and other 
aquatic life from habitat degradation related to sediment, altered 
temperature regimes (due to shade reduction and management-related 
stream morphology changes) and depletion of instream large wood. See 
e.g., National Marine Fisheries Service, ``A Draft Proposal Concerning 
Oregon Forest Practices.'' (submitted to the Oregon Board of Forestry 
Memorandum of Agreement Advisory Committee and the Office of the 
Governor February 17, 1998).
    Oregon's official State science team concluded that ``current rules 
for riparian protection, large wood management, sedimentation, and fish 
passage are not adequate to reserve depressed stocks of wild 
salmonids.'' The scientists recommended greater vegetation retention in 
riparian areas and landslide paths, protection of floodplains, better 
control of road-related sedimentation and other measures. Independent 
Multidisciplinary Science Team. 1999. Recovery of Wild Salmonids in 
Western Oregon Forests: Oregon Forest Practices Act Rules and the 
Measures in the Oregon Plan for Salmon and Watersheds. Technical Report 
1999-1 to the Oregon Plan for Salmon and Watersheds, Governor's Natural 
Resources Office, Salem, Oregon.
    The current Oregon program is particularly weak in its protection 
for small streams, where little or no vegetation retention is required. 
NMFS, ``A Draft Proposal Concerning Oregon Forest Practices.'' 
Monitoring data shows significant post-harvest temperature increases 
for portions of smaller streams lacking riparian protections (Oregon 
Department of Forestry, Riparian Functions Issue Paper, 1999), as well 
as increased fine sediment. Thom, B.A., K.K. Jones, and R.L. Flitcroft. 
1999. Stream Habitat Conditions in Western Oregon. Monitoring Program 
Report 1999-1 to the Oregon Plan for Salmon and Watersheds, Governor's 
Natural Resources Office, Salem, Oregon.

 IV. FEDERAL LOGGING GUIDELINES ALSO FAIL TO ADDRESS ADEQUATELY WATER 
                POLLUTION FROM SILVICULTURAL ACTIVITIES.

    In addition to logging on State and private lands, significant 
logging occurs on lands managed by Federal agencies, primarily the U.S. 
Forest Service (USFS) and the Bureau of Land Management (BLM). The 
National Forest Management Act provides for standards and guidelines 
for logging in the national forests. 16 U.S.C. Sec. 1600 et seq. BLM 
manages its land under the Federal Land Policy and Management Act. 43 
U.S.C. Sec. 1701 et seq. Forest management plans incorporate best 
management practices to address water quality impacts from logging and 
logging roads. For the most part, these standards are more rigorous 
than State guidelines. See, e.g., GAO, Public Timber: Federal and State 
Programs Differ Significantly in Pacific Northwest, GAO/RCED-96-108 
(May 1996), at 4-6.
    Even Federal BMPs, however, fail to protect water quality 
adequately. Logging continues to add large loads of sediments to 
streams, destroying fish habitat, modifying stream flows, changing 
stream temperatures, and altering stream channels. Logging on Federal 
lands has also led to massive landslides, damaging property and costing 
lives, as well as ravaging ecosystems. ``Siuslaw Study Ties Landslides 
to Roads, Clear-cuts,'' The Oregonian (May 23, 1997). In some 
instances, sedimentation has been so severe that it has shut down 
drinking water supplies. GAO, Oregon Watersheds: Many Activities 
Contribute to Increased Turbidity During Large Storms, GAO/RCED-98-220 
(July 1998), at 4, 6 (describing contribution of human activities, 
including timber harvesting, to the shut down of the water treatment 
system in Salem, Oregon, in February, 1996).
    In Alaska's Tongass National Forest, the USFS has documented the 
failure of BMPs to protect water quality adequately. In its 1995 report 
to Congress, Anadromous Fish Habitat Assessment, the USFS stated:

          Current practices on the Tongass do not meet either the goal 
        of the Tongass Land Management Plan to ``preserve the 
        biological productivity of every fish stream on the Tongass,'' 
        or the long-term goal of avoiding the possible need for listing 
        of salmon and steelhead stocks under the Endangered Species 
        Act. . . . [T]imber harvest practices on the Tongass observed 
        as part of this study were found to increase risk over natural 
        risk levels to both habitat productivity and to individual 
        stocks of salmon and steelhead.

    USFS, Anadromous Fish Habitat Assessment (AFHA) (1995), at 7. The 
USFS stated further, ``even completely implementing current procedures 
would not be fully effective in protecting anadromous fish habitat 
productivity and salmon and steelhead stocks over the long term.'' Id.
    Among other things, the AFHA report specifically addressed the 
detrimental environmental impacts associated with the location and lack 
of maintenance of roads constructed to facilitate clearcutting on 
Tongass National Forest lands. The USFS found:

          [p]roblems were noted associated with design, construction, 
        maintenance, mitigation, and closure of roads, especially on 
        steep, unstable slopes. Stream crossings are sometimes designed 
        for less than critical flow, and ditch relief culverts are 
        sometimes not sufficient to maintain the hydrology of steep 
        slopes, hollows, and wetlands Culvert crossings of roads on 
        steep mountain-slope channels was another concern These 
        culverts have a tendency to fail and plug with bedload, 
        becoming persistent maintenance problems.

    AFHA, Appendix C, at 37.
    More recently, in its 1998 Annual Monitoring and Evaluation Report, 
the USFS discusses the failure of current Fish and Riparian Standards 
and Guidelines to effectively maintain and improve fish habitat. 
According to the study and analysis of the Petersburg Ranger District, 
455 miles of road have been surveyed. Of the 107 crossings on Class I 
streams, the Forest Service assumes that 50 percent of these culverts 
do not allow for the successful passage of fish. The statistics are 
even worse for the 257 Class II streams that were surveyed: about 85 
percent of these culverts are not adequate to pass fish. USFS, Annual 
Monitoring and Evaluation Report for Fiscal Year 1998, at 22 (``10 
percent may not be adequate''; ``75 percent are assumed inadequate to 
pass fish at all design flows'').
    The problem with culverts is not limited to the Petersburg 
district. A recent effectiveness monitoring study in Hoonah, Alaska, 
revealed that from a total of 13 Class I stream culvert crossings 
identified ``all of these . . . were judged to have characteristics 
that impede upstream migration by adult and/or juvenile anadramous 
fish.'' See Riley & Paustian, Fish Passage at Selected Culverts 
Crossings on the Hoonah District Road System (March 23, 1999), at 1-2. 
In addition, 17 of the 19 Class II culvert crossings surveyed were 
``judged to be partial or complete upstream migration barriers for 
resident fish species.'' Id.
    It is worth repeating that where timber companies and States and 
getting the job done to protect water quality, EPA's silviculture 
proposal will not apply. EPA's proposal is necessary because 
unfortunately the job is not getting done in many places.

              V. THE CLEAN WATER ACT SUPPORTS EPA'S ACTION

    Contrary to the claims of some, the CWA supports, even arguably 
requires, EPA's action. The CWA itself contains no exemption for 
silvicultural activities from the definition of ``point source.'' The 
only explicit statutory exclusion from the definition of point source 
is for agricultural stormwater discharges and return flows from 
irrigated agriculture.\2\
---------------------------------------------------------------------------
    \2\ 33 U.S.C. Sec. 1362(14).
---------------------------------------------------------------------------
    Courts have consistently found that the list provided in the CWA's 
definition of point source is not exhaustive. See, e.g., Kennecott 
Copper Corp. V. EPA, 612 F.2d 1232, 1243 (10th Cir. 1979) (Congress 
defined ``point source'' broadly so that it would be applicable to 
thousands of contemplated point sources, not all of which would 
possibly be enumerated); U.S. v. Earth Sciences, Inc., 599 F.2d 368, 
373 (10th Cir. 1979) (Congress defined point source broadly to include 
``any identifiable conveyance from which pollutants might enter the 
waters of the United States'').
    Courts have also held that the definition of point source should be 
interpreted broadly to further the purposes of the CWA. Earth Sciences, 
599 F.2d at 373 (``We believe it contravenes the intent of FWPCA and 
the structure of the statute to exempt from regulation any activity 
that emits pollution from an identifiable point.''); Quivira Mining Co. 
v. EPA, 765 F.2d 126, 129-30 (10th Cir. 1985), cert. denied, 474 U.S. 
1055 (1986)(``it was the clear intent of Congress to regulate waters of 
the United States to the fullest extent possible''); Community Ass'n 
for Restoration of the Environment v. Sid Koopman Dairy, 54 F.Supp.2d 
976, 981 (E.D.Wash. 1999) (manure spreading operations considered point 
source to further clear intent of Congress in the CWA to insure that 
animal wastes do not pollute the water of the United States); 
Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 
988 (E.D. Wash. 1994) (`` `point source' must be interpreted broadly to 
effectuate the remedial purposes of the CWA''). The CWA's purpose is to 
restore and maintain the quality of the nation's waters.\3\ Regulating 
silvicultural activities that meet the statutory definition of point 
source and which convey pollutants, such as sediment, into impaired 
streams furthers this purpose.
---------------------------------------------------------------------------
    \3\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
    In the absence of clear statutory language excluding silvicultural 
activities from the definition of point source, EPA has the authority 
to include them. In NRDC v. Costle, the U.S. Court of Appeals for the 
D.C. Circuit explicitly held that ``the power to define point and 
nonpoint sources is vested in EPA.'' 568 F.2d 1369, 1382 (D.C.Cir. 
1977). This is consistent with the deference courts have given to 
agency interpretations of broad statutory language. See, e.g., Chevron 
U.S.A. Inc. V. NRDC, 467 U.S. 837, 842-45 (1984) (if the statute is 
silent or ambiguous with respect to a specific issue, the question for 
the court is whether the agency's answer is reasonable).
    Since the only basis for the current categorical exemption of most 
silvicultural activities from the definition of point source is an EPA 
regulation, EPA has the authority to change this regulation as long is 
such change has a rational basis. Chevron, 467 U.S. at 863-64 (``An 
initial agency interpretation is not instantly carved in stone. . . . 
[T]he agency . . . must consider the wisdom of its policy on a 
continuing basis.''); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29, 42 (1983) (recognizing that ``[r]egulatory 
agencies do not establish rules of conduct to last forever'' and must 
be given ``ample latitude'' to adapt their rules and policies); Center 
for Science v. Department of Treasury, 797 F.2d 995, 998-1000 (D.C.Cir. 
1986) (noting that an agency may change its course with or without a 
change in circumstances as long as it provides a reasoned analysis).
    As explained above, eliminating the point source exemption for most 
silvicultural activities is necessary to address water quality problems 
in many areas of the country. Logging and logging roads have introduced 
high volumes of sediment into streams and changed natural streamflow 
patterns. Silvicultural activities have contributed to the impairment 
of numerous water bodies. In order to meet their obligations under the 
CWA to restore and maintain the quality of the nation's waters, EPA and 
the States must be able to limit silvicultural discharges.
    While some silvicultural activities may fall outside the statutory 
definition of point source, others do not. Courts have characterized 
point sources as those activities that can be isolated as the source of 
pollution. Earth Sciences, 599 F.2d at 371; Avoyelles Sportmen's 
League, Inc. V. Marsh, 715 F.2d 897, 922-25 (5th Cir. 1983) (vehicles, 
such as bulldozers, involved in land clearing activities are point 
sources); Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 
1173 (D.Mont. 1995) (nonpoint sources are limited to uncollected runoff 
which is difficult to ascribe to a single polluter).
    In some cases, it is certainly possible to identify silvicultural 
activities as point sources that cause water impairment. Sediment from 
logging and logging roads may be conveyed into streams and other waters 
during storm events through channels or ditches. The Tennessee skid 
trail is a good example of the kind of silviculture activity that falls 
within the statutory definition of point source. In these cases, it is 
entirely appropriate, and in fact legally required by the CWA, to 
require an NPDES permit.
    Eliminating the silviculture exemption as proposed does not 
unlawfully preempt State authority. While Section 319 of the CWA gives 
States primary responsibility for the development non-point source 
controls, EPA's proposal only addresses point sources. EPA proposes to 
change the regulatory definition of ``silvicultural point source'' to 
eliminate the categorical exclusion of most silvicultural activities. 
Any regulation of silvicultural activities would still be limited to 
those activities that fall within the statutory definition of point 
source.\4\
---------------------------------------------------------------------------
    \4\ See 33 U.S.C. 1362(14).
---------------------------------------------------------------------------
    No previous case law bars EPA's action. Given the existing 
regulatory silviculture exemption from the definition of point sources, 
courts have not had to address the issue of whether a particular 
silvicultural activity falls within the statutory definition of point 
source. Courts have deferred to EPA's previous decision to exclude 
silvicultural activities from point source controls. Likewise, courts 
will defer to EPA's decision now to include silvicultural activities as 
long as a rational basis exists for doing so.
    Where Congress intended to exclude silvicultural activities from 
CWA requirements it explicitly did so. For example, in Section 404 of 
the CWA regulating the discharge of dredged or fill material, Congress 
listed ``silviculture,'' in addition to and separate from 
``farming.''\5\ Also in Section 404, Congress listed ``forest roads,'' 
in addition to and separate from ``farm roads.''\6\ In contrast, the 
exception from the statutory definition of ``point source'' is limited 
to ``agricultural stormwater discharges and return flows from irrigated 
agriculture.''\7\ Congress did not include silviculture in the 
exemption. Consequently, it should not be read into the exemption. See 
Indep. Bankers Ass'n of Am. V. Farm Credit Admin., 164 F.3d 661, 667 
(D.C.Cir. 1999) (``[W]here Congress includes particular language in one 
section of a statute but omits it in another section of the same Act, 
it is generally presumed that Congress acts intentionally and purposely 
in the disparate inclusion or exclusion.'') (internal quotation marks 
omitted) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
---------------------------------------------------------------------------
    \5\ 33 U.S.C. 1344(f)(A).
    \6\ 33 U.S.C. 1344(f)(E).
    \7\ 33 U.S.C. 1362(14).
---------------------------------------------------------------------------
      VI. NON-POINT SOURCES SHOULD BE INCLUDED IN THE TMDL PROCESS

    As explained above, EPA's silviculture proposal does not require 
permits from non-point sources. In fact, nothing in EPA's proposed 
changes to the TMDL and NPDES rules requires permits from non-point 
sources. EPA has acknowledged that States have the primary 
responsibility to regulate non-point sources. The TMDL process is a 
critical mechanism for ensuring that controlling pollution from non-
point sources is efficient and effective. The TMDL process will 
accomplish little if it does not consider pollution from non-point 
sources.
    Excluding non-point sources from a program designed to address 
aggregate pollution rather than discrete sources would make virtually 
no sense. The purpose of the TMDL program is to address situations 
where point source controls have not done the job in meeting water 
quality standards. Section 303(d) requires each State to identify 
waters where technology-based controls (i.e., the effluent limitations 
applicable to point sources under Section 301) are inadequate to attain 
water quality standards. Unfortunately, in many circumstances, control 
of point sources alone is insufficient to meet water quality 
standards.\8\ Approximately 90 percent of the waters listed by States 
as impaired fail to meet water quality standards at least in part as a 
result of polluted runoff from diffuse or non-point sources. 
Approximately half of all impaired water bodies violate water quality 
standards as a result of non-point sources alone. Excluding these 
waters from the TMDL program would simply ignore the problem rather 
than provide an effective means of restoring water quality.
---------------------------------------------------------------------------
    \8\ 33 U.S.C. 1313(d)(1)(A).
---------------------------------------------------------------------------
    Moreover, excluding non-point sources from the TMDL process would 
unfairly continue to force point sources to bear the lion's share of 
the water pollution control price tag despite clear evidence that non-
point sources contribute substantially, and in many watersheds 
exclusively, to water body impairment. For this reason, several 
industries strongly support inclusion of non-point sources in the TMDL 
program. The Association for Metropolitan Sewerage Agencies (AMSA), for 
example, has urged Congress to support EPA's plan to expand the 
regulation of non-point sources through the TMDL program. In a January 
20, 2000, letter to this committee, AMSA described inclusion of non-
point sources in the TMDL program as ``critical to the success of the 
Clean Water Act.''
    Finally, the protracted schedule for listing and completion of 
TMDLs in the proposed regulations would be entirely unnecessary, and in 
fact would constitute unreasonable and unlawful delay of an already-
overdue program, if it were limited to the comparatively easy task of 
identifying and quantifying point source wasteload allocations. The 
proposed regulations provide States 15 years, 2 years beyond the 
current 13-year schedule, to establish TMDLs for waterbodies listed as 
impaired. If the TMDL process only involved point sources, there would 
be little reason for such a long time period to develop TMDLs.
    From a legal perspective, EPA is well within its authority, if not 
subject to a legal duty, to include non-point sources in this program. 
Section 303(d)(1)(A) requires States to identify all waters for which 
technology-based pollution controls are not sufficient to implement any 
applicable water quality standard. Section 303(d)(1)(C), in turn, 
requires the development of TMDLs for all of the waters identified 
under (d)(1)(A). The only waters explicitly excluded from TMDL process 
are those that have attained water quality standards. All other waters 
must be addressed and for them to be addressed effectively non-point 
sources must be included in the mix of regulatory and non-regulatory 
controls.
    While the legislative history of Section 303(d) is sparse, it 
clearly reflects that Congress understood that non-point sources 
contribute substantially to the pollution of many watersheds and should 
be taken into account in the TMDL process.\9\ As Oliver Houck, a 
Professor of Law at Tulane Law School, has written:
---------------------------------------------------------------------------
    \9\ H.R. Rep. No. 92-911, at 105 (1972).

          The only logical interpretation of [the] legislative history 
        behind section 303(d) is that nonpoint sources were a big fact 
        of life in achieving water quality standards, and they would 
        have to be included in the assessments of polluted waters and 
        their TMDL allocations. Were they not included, a process to 
        ensure that municipal and industrial limits were ``consistent 
        with water quality standards'' would make no sense; it, 
        literally, could not be done.\10\
---------------------------------------------------------------------------
    \10\ Houck, Oliver A., TMDLs: The Resurrection of Water Quality 
Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 
10329, 10337 n. 100 (1997).

    The argument that the TMDL program is intended solely to identify 
additional point source controls is inconsistent with the CWA. Such 
interpretation undermines the CWA's purpose to restore and maintain the 
quality of the nation's waters.\11\ A program that ignores 90 percent 
of the problem cannot be said to be consistent with restoring the 
quality of the nation's waters. Courts avoid interpreting a statute in 
a way that would produce an illogical or unreasonable result. See, 
e.g., In re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1303 (9th Cir. 
1995). If Congress had intended to limit the TMDL program to point 
sources, it would have explicitly done so. Congress used the term 
``point sources'' repeatedly throughout the CWA and could have limited 
Section 303(d)'s application to point sources if it so chose, but it 
did not.
---------------------------------------------------------------------------
    \11\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
    Contrary to critics of EPA's proposal, the Agency makes no attempt 
to regulate non-point sources. A critical distinction exists between 
the identification of non-point sources in a TMDL and regulation of 
non-point sources. A TMDL provides a ``pollution budget,'' i.e., the 
amount of a particular pollutant that a water body can bear and still 
meet water quality standards. Identifying all the sources, both point 
and non-point, of a pollutant is essential to completing the pollution 
budget. A TMDL is also designed to allocate the budget, or maximum 
load, among the various sources affecting the water body. A State's 
decision to allocate load reductions to non-point sources does not 
bring that operator into a permit or regulatory program. Under EPA's 
proposal, a State may choose a broad range of controls, including 
voluntary or incentive-based actions, to ensure that the allocations 
for non-point sources are met.

                            VII. CONCLUSION

    In my testimony, I have tried to explain the limited impact of 
EPA's silviculture proposal--that it only applies to activities which 
meet the statutory definition of a point source and are known to 
contribute to water quality impairment. EPA's proposal would not apply 
to timber companies and States that are getting the job done to 
maintain and restore water quality. However, in many places the job 
unfortunately is not getting done. It is these places where water 
quality is impaired as a result of logging or logging roads that make 
EPA's proposal necessary. I have also tried to explain the importance 
of including non-point sources in the TMDL program. I hope that 
Congress will recognize the need for EPA's proposal and support the 
Agency's efforts to ensure clean water for all Americans.
    Thank you for the opportunity to testify. I would be happy to 
answer any questions that you may have.

                              Attachment 1

    Over 200 Organizations Oppose Clean Water Act Special Interest 
Loopholes (H.R. 3609, S. 2041 and S. 2139)
                                                     March 9, 2000.
    Dear Senators and Representatives: We--the attached 207 
organizations and 76 individual citizen clean water advocates--strongly 
oppose legislative proposals recently introduced in the House and 
Senate that would create a huge new special interest loophole in the 
Clean Water Act for forest industries that pollute our nation's rivers, 
streams, lakes and oceans.
    Our organizations represent hundreds of thousands of members who 
use the nation's waters for recreational, commercial and subsistence 
purposes. These new bills, H.R. 3609, S. 2041 and S. 2139, would 
threaten the water quality that our members and the American public 
rely on for these important uses. We not only object to the substance 
of these bills, we are concerned by reports that they might emerge as a 
legislative rider on an appropriations bill--a particularly 
inappropriate backdoor strategy for attempting to overturn a 
longstanding provision of the Clean Water Act. We ask you to oppose 
this anti-environmental legislation, whether it is in the form of a 
stand-alone bill or a rider.
    In sum, these bills would create an unprecedented statutory 
exemption from the Clean Water Act's National Pollutant Discharge 
Elimination System (NPDES) for logging activities that cause point 
source discharges into waters of the United States. These bills have 
been spurred by an aggressive misinformation campaign about a recent 
rule change proposed by the Environmental Protection Agency (EPA) that 
would require certain point source discharges from silvicultural 
activities to obtain NPDES permits. The proposed rule would require 
that logging-related direct discharges get NPDES permits only under 
certain narrow circumstances, including when such discharges are 
causing significant pollution of waters that are already too polluted. 
Contrary to the rhetoric of those opposing this rule, EPA's proposal 
only addresses point sources--it does not purport to regulate non-point 
sources--and regulation of these point sources is not inconsistent with 
the Agency's authority under the Act.
    The Clean Water Act contains no exemption from the definition of 
``point source'' for silvicultural activities. Although EPA has not 
treated most silviculture activities as point sources in the past, the 
Agency has found that an automatic exemption in EPA's rules is no 
longer appropriate if we are to achieve the Clean Water Act's goal of 
fishable and swimmable waters. In those cases where a forestry-related 
practice meets the statutory definition of ``point source'' and the 
activity is a significant source of water pollution, EPA and the States 
must be able to regulate and control pollution from that activity. Any 
regulation of logging pollution would still be limited to those 
activities that already fall within the statutory definition of ``point 
source.'' Logging and logging roads degrade water quality in many parts 
of the country. Numerous scientific studies have documented the serious 
harm to water quality and aquatic ecosystems that can be caused by 
logging practices and logging roads. Roads and logging can 
significantly pollute and even destroy stream ecosystems by introducing 
high volumes of sediment and nutrients into streams, changing natural 
stream flow patterns, and damaging vital aquatic habitats. Eliminating 
the automatic exemption from point source regulation for silvicultural 
activities that have point source discharges is necessary to address 
water quality problems in many States.
    Regardless of your view of EPA's current rulemaking proposal, there 
is no legal or public policy justification for the environmentally 
destructive loophole in the Clean Water Act that H.R. 3609, S. 2041 and 
S. 2139 advance. These bills would weaken one of our nation's most 
successful environmental laws for the benefit of a few forestry 
companies at the expense of clean water. Please stand up for clean 
water and responsible forestry practices by opposing H.R. 3609, S. 
2041, S. 2139 and any related anti-environmental rider that would 
exempt silviculture point source pollution from the Clean Water Act.
            Sincerely,
                    Brad McLane, Alabama Rivers Alliance, Birmingham, 
                            AL; Beth K. Stewart, Cahaba River Society, 
                            Birmingham, AL; Kenneth Wills, Alabama 
                            Environmental Council, Birmingham, AL; Dan 
                            Murchison, Chilton Pride, Chilton County, 
                            AL; Gershon Cohen, Earth Island Institute, 
                            Haines, AK; Bob Shavelson, Cook Inlet 
                            Keeper, Homer, AK; Shawn Porter, Arkansas 
                            Watershed Alliance, AR; Bill Kopsky, 
                            Arkansas Public Policy Panel, Little Rock, 
                            AR; Nick Zunick, Senior Patrol Leader, Boy 
                            Scout Troop Fifteen, Hot Springs, AR; David 
                            Reagan, Ouachita Watch League, Hot Springs 
                            Nat'l. Pk., AR; Mariah Myers, Sierra 
                            Student Coalition, University of Arkansas, 
                            Fayetteville, AR; Robert Lippman, Glen 
                            Canyon Action Network, Flagstaff, AZ; 
                            Barbara Vlamis, Butte Environmental 
                            Council, Chico, CA; Michael McFarland, 
                            Fresno Audubon Society, Fresno, CA; Kyle 
                            Haines, Klamath Forest Alliance, Etna, CA; 
                            Patricia McCoy, Southwest Interpretive 
                            Association, Imperial Beach, CA; Mary Bull, 
                            Save the Redwoods/Boycott the Gap Campaign, 
                            Fort Bragg, CA; Craig Thomas, Center for 
                            Sierra Nevada Conservation, Georgetown, CA; 
                            Robin Mayer, Magic, Stanford, CA; Stephen 
                            Sayre, Lassen Forest Preservation Group, 
                            Chico, CA; Vivian Parker, Shasta Chapter, 
                            California Native Plant Society, Kelsey, 
                            CA; Tarren Collins, Santa Lucia Chapter/
                            Sierra Club, Atascadero, CA; Kent 
                            Stromsmoe, Forestry Monitoring Project, 
                            Martinez, CA; Geoffrey Smith, Sierra Club, 
                            San Diego Chapter, San Diego, CA; Britt 
                            Bailey, Center for Ethics and Toxics, 
                            Gualala, CA; Steve Nicola, California 
                            Indian Basketweavers Association, Nevada 
                            City, CA; Wendy Blankenhiem, Community 
                            Action Network, Medocino, CA; Jonathan 
                            Kaplan, WaterKeepers Northern California, 
                            San Francisco, CA; Dr. Rob Schaeffer, SAFE: 
                            Save Our Ancient Forest Ecology, Modesto, 
                            CA; Jess Morton, Audubon-Palos Verdes/South 
                            Bay, San Pedro, CA; Ara Marderosian, 
                            Sequoia Forest Alliance, Weldon, CA; 
                            Christine Ambrose, Citizens For Better 
                            Forestry, Arcata, CA; Mary Ann Matthews, 
                            State Forestry Coordinator, California 
                            Native Plant Society, CA; Chris Maken, 
                            Concerned Citizens for Napa Hillsides, 
                            Napa, CA; Redwood Mary, Plight of The 
                            Redwoods Campaign, Ft. Bragg, CA; Tom 
                            Wodetzki, Alliance for Democracy, Mendocino 
                            Coast Chapter, Albion, CA; Jean Crist, 
                            Protect Our Watershed, Magalia, CA; Chris 
                            Poehlmann, Gualala River Improvement 
                            Network, Annapolis, CA; Patricia M. 
                            Puterbaugh, Lassen Forest Preservation 
                            Group, Chico, CA; Christopher M. Papouchis, 
                            Animal Protection Institute, Sacramento, 
                            CA; Irvin Lindsey, Outdoor Science 
                            Exploration, Santa Cruz, CA; Steve 
                            Sugarman, Social & Environmental 
                            Entrepreneurs, Malibu, CA; Alan Levine, 
                            Coast Action Group, Point Arena, CA; Holly 
                            Hannaway, LightHawk, Aspen, CO; Harlin 
                            Savage, American Lands Alliance, Boulder, 
                            CO; Jacob Smith, Wildlands Center for the 
                            Prevention of Roads, Boulder, CO; Jon 
                            Jensen, Center for Native Ecosystems, 
                            Boulder, CO; Sloan Shoemaker, Aspen 
                            Wilderness Workshop, Aspen, CO; Annie 
                            White, CU-Sinapu, Boulder, CO; Steve 
                            Glazer, High Country Citizens' Alliance, 
                            Crested Butte, CO; Jeffrey A. Berman, 
                            Colorado Wild, Boulder, CO; Margaret Miner, 
                            Rivers Alliance of Connecticut, 
                            Collinsville, CT; Sharon Buccino, Natural 
                            Resources Defense Council, Washington, DC; 
                            Steve Holmer, American Lands Alliance, 
                            Washington, DC; Ed Hopkins, Sierra Club, 
                            Washington, DC; Joan Mulhern, Earthjustice 
                            Legal Defense Fund, Washington, DC; 
                            Courtney Cuff, Friends of the Earth, 
                            Washington, DC; Brock Evans, Federation of 
                            Western Outdoor Clubs, Washington, DC; 
                            Catrina Ciccone, Lutheran Office for 
                            Governmental Affairs, Evangelical Lutheran 
                            Church in America; Washington, DC; Nick 
                            Brown, World Wildlife Fund, Washington, DC; 
                            Aaron Viles, U.S. PIRG, Washington, DC; 
                            Mike Leahy, National Audubon Society, 
                            Washington, DC; Amy Lesser, Center for 
                            Environmental Citizenship, Washington, DC; 
                            Rebecca Wodder, American Rivers, 
                            Washington, DC; James S. Lyon, National 
                            Wildlife Federation, Washington, DC; Tim 
                            Eichenberg, Center for Marine Conservation, 
                            Washington, DC; Brock Evans, The Endangered 
                            Species Coalition, Washington, DC; Doug 
                            Sloane, Southeast Forest Project, 
                            Washington, DC; Mary Beth Beetham, 
                            Defenders of Wildlife, Washington, DC; Ted 
                            Morton, American Ocean Campaign, 
                            Washington, DC; Karsten A. Rist, Tropical 
                            Audubon Society, Miami, FL; Beth Frazer, 
                            Community Watershed Project, Athens, GA; 
                            Doug Haines, Georgia Legal Watch, Athens, 
                            GA; Ohana Foley, Student Peace Action 
                            Network, Haiku, HI; Linda Appelgate, Iowa 
                            Environmental Council, IA; Marti L.Bridges, 
                            Idaho Rivers United, Boise, ID; G.A. 
                            Bailey, Selkirk-Priest Basin Association, 
                            Priest River, ID; Liz Sedler, Alliance for 
                            the Wild Rockies, Sandpoint, ID; J. Dallas 
                            Gudgell, Idaho Conservation League, Boise, 
                            ID; Lee Halper, Land, Air & Water Society, 
                            Jerome, ID; Chuck Pezeshki, Clearwater 
                            Biodiversity Project, Moscow, ID; Lynne 
                            Stone, Boulder-White Clouds Council, 
                            Ketchum, ID; Katie Fite, Committee for 
                            Idaho's High Desert, Boise, ID; Albert 
                            Ettinger, Environmental Law and Policy 
                            Center of the Midwest, Chicago, IL; Frank 
                            Ambrose, Indiana Forest Alliance, 
                            Bloomington, IN; Tom Anderson, Save the 
                            Dunes Council, Michigan City, IN; Cliff 
                            Smedley, Stewards of the Land, Johnson, KS; 
                            Larry Zuckerman, Pure Water For Kansas, 
                            Program of the Kansas Wildlife Federation, 
                            Pretty Prairie, KS; Cheryl Bersaglia, Upper 
                            Cumberland Watershed Watch, McKee, KY; Liz 
                            Natter, Democracy Resource Center, 
                            Lexington, KY; Jan Jennemann, Mercer Water 
                            Watch, Salvisa, KY; Coleman Smith, Citizens 
                            Environmental Defense League, Bowling 
                            Green, KY; Judith D. Petersen, Kentucky 
                            Waterways Alliance, Munfordville, KY; 
                            Barbara Warner, Marion County Water Watch, 
                            Lebanon, KY; Jill Mastrototaro, Lake 
                            Pontchartrain Basin Foundation, Metairie, 
                            LA; Cyn Sarthou, Gulf Restoration Network, 
                            New Orleans, LA; Michael Kellett, RESTORE: 
                            The North Woods, Concord, MA; Pine DuBois, 
                            Jones River Watershed Association, 
                            Kingston, MA; Josh Kratka, National 
                            Environmental Law Center, Boston, MA; Ed 
                            Himlan, Tom Spiro, and Brandon Kibbe, The 
                            Massachusetts Watershed Coalition, MA; Kai 
                            Newkirk, E.A.R.T.H. (Ecologically Aware and 
                            Responsible Together at Hampshire), 
                            Amherst, MA; Laura Rose Day, Natural 
                            Resources Council of Maine, Augusta, ME; 
                            Ray Fenner, Superior Wilderness Action 
                            Network, St. Paul, MN; Nancy Clay Madden, 
                            MS Coast Audubon Society, Jackson, MS; 
                            Larry Smith, Pine Woods Audubon, 
                            Hattiesburg, MS; Judi Brawer, American 
                            Wildlands, Bozeman, MT; Joe Gutkoski, 
                            Montana River Action Network, Bozeman, MT; 
                            Jeff Juel, The Ecology Center, Inc., 
                            Missoula, MT; Robin Cunningham, Montana 
                            Fishing Outfitters Conservation Fund, 
                            Gallatin-Gateway, MT; Cold Mountain, Cold 
                            Rivers, Missoula, MT; Cesar Hernandez, 
                            Flathead Chapter of the Montana Wilderness 
                            Association, Kalispell, MT; Larry Campbell, 
                            Friends of the Bitterroot, Hamilton, MT; 
                            Elizabeth O'Nan, Protect All Children's 
                            Environment, Marion, NC; Dan Whittle, North 
                            Carolina Environmental Defense, Raleigh, 
                            NC; Cathie Berrey, Katuah Earth First!, 
                            Asheville, NC; Rick Dove, Neuse 
                            RIVERKEEPER, New Bern, NC; Marion Smith, 
                            Neuse River Foundation, New Bern, NC; 
                            Andrew George, Southern Appalachian, 
                            Biodiversity Project, Asheville, NC; Ginger 
                            Bush, Rockingham County Watershed 
                            Preservation Coalition, Inc., Colfax, NC; 
                            Hope C. Taylor, Clean Water Fund of NC, 
                            Asheville, NC; Meredith McLeod, Hickory 
                            Alliance, Chapter of the Blue Ridge 
                            Environmental Defense League, Greensboro, 
                            NC; Robert Perks, Pamlico-Tar River 
                            Foundation, Washington, NC; John Runkle, 
                            Conservation Council of NC, Raleigh, NC; 
                            Candice Carr, ASHE, Active Students for a 
                            Healthy Environment, Asheville, NC; Jean 
                            Spooner, NCSU Water Quality Group, North 
                            Carolina State University, Raleigh, NC; 
                            Chuck Rice, North Carolina Wildlife 
                            Federation, NC; Nancy L. Girard, New 
                            Hampshire Conservation Law Foundation, 
                            Concord, NH; Marie A. Curtis, New Jersey 
                            Environmental Lobby, Trenton, NJ; Harold E. 
                            Taylor, Pompeston Creek Watershed 
                            Association, Cinnaminson, NJ; Hugh Carola, 
                            The Fyke Nature Association, Ramsey, NJ; 
                            Julia M. Somers, Great Swamp Watershed 
                            Association, New Vernon, NJ; Karen R. 
                            Halliday, New Mexico Wilderness Alliance, 
                            Albuquerque, NM; Kerry Sullivan, Natural 
                            Resources Protective Association, Staten 
                            Island, NY; Day Star Chou, Flushing Greens, 
                            Green Party of NY, NY; Kathrn Martini and 
                            Tara Kehoe, HEART, Syracuse, NY; Gordon 
                            Douglas, Friends of the Great Swamp, 
                            Pawling, NY; Jennifer Nalbone, Great Lakes 
                            United, Buffalo, NY; Manna Jo Greene, 
                            Hudson Valley Sustainable Communities 
                            Network, Cottekill, NY; William Peltz, 
                            Capital District Labor-Religion Coalition 
                            Albany, NY; Erik Holland, Civilian 
                            Filibuster, Reno, NY; Jason Tockman, 
                            Buckeye Forest Council, Athens, OH; 
                            Margaret Ruff, Oklahoma Wildlife 
                            Federation, Oklahoma City, OK; Judy Guise-
                            Noritake, Pacific Rivers Council, Eugene, 
                            OR; John Taylor, Sisklyou Audubon Society, 
                            Grants Pass, OR; Michael Donnelly, Friends 
                            of Breitenbush Cascades, Salem, OR; 
                            Dominick Dellasalla, World Wildlife Fund, 
                            Klamath-Siskiyou Region, Ashland, OR; Tom 
                            Burns, Concerned Friends of the Winema, 
                            Chiloquin, OR; John E. Barry, Range Ecology 
                            Group, La Grande, OR; P. Sydney Herbert, 
                            Oregon Shores Conservation Coalition, 
                            Portland, OR; George Hutchinson, Rogue 
                            Group and Oregon Chapter Sierra Club, OR; 
                            Nina Belk Northwest Environmental 
                            Advocates, Portland, OR; Claudia McCue, 
                            Corvallis Area Forest Issues Group, Monroe, 
                            OR; Donald Fontenot, Cascadia Forest 
                            Alliance, Portland, OR; Shannon Wilson, 
                            Many Rivers Group Sierra Club, Eugene, OR; 
                            Ric Bailey, Hells Canyon Preservation 
                            Council, La Grande, OR; Tom Dimitre, 
                            Headwaters, Ashland, OR; Jim Britell, 
                            Kalmiopsis Audubon Society, Port Orford, 
                            OR; Nathan Tublitz, Eugene Natural History 
                            Society, Eugene, OR; Susan Jane Brown, 
                            Northwest Environmental Defense Center, 
                            Portland, OR; Lovenia Warren, Salmon for 
                            All, Astoria, OR; Jay Letto, Central 
                            Cascades Alliance, Hood River, OR; Lisa P. 
                            Brenner, Oregon Clearinghouse for Pollution 
                            Reduction, Portland OR; Mary Ann Lucking, 
                            CORALations, Inc. Carolina, PR; Kathy 
                            McDeed, South Carolina Forest Watch, 
                            Westminster SC; Wendy Smith, World Wildlife 
                            Fund--Southeast Rivers, Nashville, TN; 
                            Donald B. Clark, United Church of Christ, 
                            Network for Environmental & Economic 
                            Responsibility, Pleasant Hill, TN; Rev. 
                            Walter Stark, Cumberland Countians for 
                            Peace & Justice, Pleasant Hill, TN; Louise 
                            Gorenflo, Obed Watershed Association, 
                            Crossville, TN; Edward C. Fritz, Texas 
                            Committee on Natural Resources, Dallas, TX; 
                            Live Oak Alliance, Austin, TX; Theodore C. 
                            Mertig, Environmental Action, EI Paso, TX; 
                            James Facette, Center for Social Justice 
                            and Global Awareness, San Antonio, TX; 
                            Denise Boggs, Utah Environmental Congress, 
                            Salt Lake City, UT; Steve Moyer, Trout 
                            Unlimited, Arlington, VA; Jack Dunavant, 
                            Southside Concerned Citizens, Halifax VA; 
                            David Bookbinder, American Canoe 
                            Association, Springfield, VA; Tim SanJule, 
                            Rivanna Conservation Society, Palmyra, VA; 
                            Shenandoah Ecosystems Defense Group, 
                            Charlottesville, VA; Dave Muhly, Virginia 
                            Forest Watch, Wytheville, VA; Detta Davis, 
                            The Clinch Coalition, Coeburn, VA; Jackie 
                            Hanrahan, Coalition for Jobs and the 
                            Environment, Abingdon, VA; Richard Flint, 
                            Committee for Improvement of Dickenson 
                            County Inc., Clintwood, VA; Rick Parrish, 
                            Southern Environmental Law Center, 
                            Charlottesville, VA; Dick Austin, Devil's 
                            Fork Trail Club, Dungannon, VA; Christopher 
                            M. Kilian, Conservation Law Foundation, 
                            Montpelier, VT; Job C. Heintz, Vermont 
                            Natural Resources Council, Montpelier, VT; 
                            Wally Elton, Ascutney Mountain Audubon 
                            Society, Springfield, VT; Stephen Crowley, 
                            Vermont Chapter of the Sierra Club, South 
                            Burlington, VT; Jim Northup, Forest Watch, 
                            Montpelier, VT; Brady Engvall' Friends Of 
                            Grays Harbor, Westport, WA; Greg Wingard, 
                            Waste Action Project, Seattle, WA; David 
                            Jennings, Gifford Pinchot Task Force, 
                            Olympia, WA; Helen Ross, Seattle Audubon 
                            Society, Seattle, WA; Joe Scott. Northwest 
                            Ecosystem Alliance, Bellingham, WA; Dr. 
                            Herbert Curl, Jr, Seattle Audubon Society, 
                            Seattle WA; Susan Crampton, Methow Forest 
                            Watch, Twisp, WA; Timothy J. Coleman, 
                            Kettle Range Conservation Group, Republic, 
                            WA; Bill Hallstrom, Green-Rock Audubon 
                            Society, Beloit, WI; David J. Zaber 
                            Wisconsin's Environmental Decade, Madison, 
                            WI; Eric Uram, Sierra Club Midwest Office, 
                            Madison, WI; David J. Zaber. Western Lakes 
                            Wildlife Center, Monona, WI; Dr. Margaret 
                            Janes, Potomac Headwaters Resource 
                            Alliance, Mathias, WV; Mr. Francis D. 
                            Slider, Mountaineer Chapter of Trout 
                            Unlimited, Buckhannon, WV; Jim Summers, 
                            West Virginia B.A.S.S. Federation, 
                            Worthington, WV; Dianne Bady, Ohio Valley 
                            Environmental Coalition, Huntington, WV; 
                            Dan Heilig, Wyoming Outdoor Council, 
                            Lander, WY; Jonathan B. Ratner, Sublette 
                            Riders Association, Pinedale, WY; Danna 
                            Smith and Douglas Sloane, Dogwood Alliance, 
                            Southeastern United States.

                    INDIVIDUAL CLEAN WATER ADVOCATES

Wanda B. Stephens, Fayetteville, AR
Holly Ferguson, Fayetteville, AR
Moira Johnston Block and Alvin Lee Block, M.D., CA
Cory Chew, Los Angeles, CA
Cralan Deutsch, CA
Kirk Mobert, Point Arena, CA
Heidi Marshall, Point Arena, CA
Thomas Davis, Napa, CA
Lucy Kenyon, Santa Rosa, CA
Holly Mitten, Moss Beach, CA
Mary Knight, Willits, CA
Anthony Morris, Willits, CA
Talia Eisen, Los Angeles, CA
Kathie Lech, Willits, CA
Fred and Phyllis Mervine, Ukiah, CA
Elise Kelley, Davis, CA
Rainer Hoenicke, Napa, CA
David H. Walworth, MD, Soqiel, CA
James Woods, Penn Valley, CA
Diane Solomon, C.P.A., San Jose, CA
Meade Fischer, Corralitos, CA
Eric Sunswheat, Potter Valley, CA
Douglas F. Wallace, Ft. Collins, CO
Tom Dickinson, Boulder, CO
Estelle Gahn, Fort Collins, CO
Daniel Mandelbaum, Washington, DC
Benna Kolinsky, Washington, DC
Marc Goncher, Atlanta, GA
Jason Barringer, Atlanta, GA
Ernest L. Horton, Marietta, GA
Renuka Dhungana, Marietta, GA
Marion B. Hilliard, Orange Park, FL
Chris Norden, Moscow ID
Monte D. Wilson, Potlatch, ID
Leslie A. Manskey, Bloomington, IL
Robert E. Rutkowski, Esq., Topeka, KS
Tina Montgomery, Louisville, KY
Carrie DeJaco' Louisville, KY
Melanie Hurst, Louisville, KY
Owen Muise, Plymouth, MA
Cynthia S. Brown, PhD., Saint Paul, MN
J.F.Puckett, MD, Hattiesburg, MS
Tom Mattison, Jacksonville, NC
James L. Conner II, Durham, NC
Peter and Margaret Schubert, Durham, NC
John Colvin, Albuquerque, NM
Karen McCue, Albuquerque, NM
Colin Sillerud, Albuquerque, NM
Dorothy D. Meyerink, Henrietta, NY
Joel Clark Mason, Chappaqua, NY
Mr. Bobbie D. Flowers, New York, NY
Carol Witbeck, Clackamas, OR
Peter M. Lavigne, Portland, OR
Megan Kemple, Eugene, OR
John Thornton, Grants Pass, OR
Ann Easterly, Oregon City, OR
Connie Earnshaw, Portland, OR
Catherine Thomasson, MD, Portland, OR
Kay Ryan Biondo, Waldport, OR
Shirley L. Brown, Sublimity, OR
Richard Katz Do, East Stroudsburg, PA
Kim Danley, Salt Lake City, UT
Marilyn Dinger, Kaysville, UT
Judy Strang, Monroe, VA
Peter H. Richardson, Norwich, VT
Dave Robinson, Curlew, WA
Marva E. Schuelke, Everett, WA
Liz Marshall, Mount Vernon, WA
Carol Melton, Seattle, WA
Jerry Burke, Petersburg, WV
Lou Schmidt, Bristol, WV
Vince Dudley, Charleston, WV
Charles ``Larry'' Harris, Morgantown, WV

    NOTE: other attachments are kept in committee files.
                               __________
STATEMENT OF ROB OLSZEWSKI, DIRECTOR, ENVIRONMENTAL AFFAIRS, THE TIMBER 
       COMPANY, ON BEHALF OF AMERICAN FOREST & PAPER ASSOCIATION

                              INTRODUCTION

    Mr. Chairman, members of the committee, my name is Rob Olszewski 
and I am Director of Environmental Affairs for The Timber Company, 
which represents the timberland assets of Georgia-Pacific Corporation. 
I appreciate the opportunity to present my testimony today on behalf of 
the American Forest & Paper Association on the Environmental Protection 
Agency's (EPA) August 23 proposed regulations to revise the Total 
Maximum Daily Load (TMDL) program under Section 303(d) and 
modifications to the National Pollutant Discharge Elimination System 
(NPDES) permit program under Section 402 of the Clean Water Act. You 
will hear that these proposed rules are a radical departure from the 
existing Federal statute and case law. Mr. Chairman, as a member of the 
TMDL Federal Advisory Committee Act (FACA) group that met to develop 
guidance for the EPA on these water quality issues, I am struggling to 
see how the August proposal resembles much of the nonpoint source 
discussions held over one and one-half years. The August proposal is as 
monumental as reauthorization of the Clean Water Act--in fact we 
believe it is a reauthorization of the statute without your 
concurrence. The forestry community hopes your committee will view it 
that way given the enormous economic and administrative burdens that 
will be imposed on landowners, manufacturers and State agencies.
    AF&PA is the national trade association of the pulp, paper and 
forest products industry. We represent approximately 84 percent of 
paper production, 50 percent of wood production and 90 percent of 
industrial forestland in the United States. Nationwide, there are 
approximately 8 million non-industrial private landowners who own 59 
percent or approximately 288 million acres of the total productive 
timberland. After the forest products industry, the farming community 
owns the largest fraction of private timberlands in the country. The 
Timber Company owns land throughout the country including Arkansas, 
Virginia, Florida, West Virginia, South Carolina, Georgia, Louisiana, 
Oregon, North Carolina, California and Mississippi.
    As stated, AF&PA represents the manufacturers of the country's 
paper supply who also have serious concerns with the proposals. While I 
will confine most of my remarks to the forestry components of the rule, 
I do want to highlight issues of concern to the manufacturing segment 
of our industry. The forestry community shares many of those concerns.
    First, EPA needs to ensure that TMDL listings and TMDL development 
are based only on high quality data. While the proposal's requirement 
that States develop a listing methodology is an excellent start, it 
does not go far enough. Second, EPA should provide a clear procedure to 
take waters that meet certain criteria off the impaired waters list 
between State listing cycles, especially if EPA extends the listing 
cycle to 4 or 5 years. In light of the harsh regulatory consequences 
that result from listing, such as offset requirements and other interim 
restrictions before TMDLs are developed, the proposals should ensure 
that only waters truly in need of TMDL development remain on the list. 
Finally, an issue I will discuss in more detail from the forestry 
perspective is that of implementation plans. EPA's criteria for TMDL 
approval will result in the Agency rejecting more State-developed 
TMDLs, with EPA issuing Federal implementation plans (and Federal 
permits) in their place. I will defer to the other witnesses testifying 
today to discuss these issue in more detail from the manufacturing 
perspective.
    The proposed rules are a top-down Federal approach being imposed on 
States and private industrial and non-industrial forest landowners 
throughout the country. Some important stakeholders in the issue 
including the National Association of State Foresters, the U.S. Forest 
Service; the Society of American Foresters; and the agriculture and 
ranching community have serious concerns with the proposed rulemaking. 
In fact, I am unaware of any comments submitted by a State or Governor 
that supports the removal of forestry as a nonpoint source activity.

              TWO ISSUES: FORESTRY REDESIGNATED AND TMDLS

    Today I will discuss two particular issues contained in the August 
23 proposals. The first issue deals with EPA's decision to abandon 
almost 30 years of statutory interpretation of the Clean Water Act and 
case law by eliminating the designation of forestry activities as a 
``nonpoint source'' activity. The second describes how EPA selectively 
used the FACA group to impose indirect Federal oversight on activities 
conducted by millions of landowners throughout the country. Finally, I 
will address briefly how we believe the Federal EPA can assist States 
and communities in getting on-the-ground results to protect and 
maintain water quality nationwide.
    Let me first explain the background of the existing regulation 
defining these forestry activities as nonpoint sources. In the original 
Clean Water Act (CWA) regulations, EPA chose to exclude certain 
activities, including all silvicultural activities, from the NPDES 
program, without regard to whether they were point sources. When 
environmental groups challenged this, the Federal courts ruled against 
EPA and ordered the agency to identify those activities that are point 
sources. EPA responded with rules in 1976 that identified four discrete 
activities associated with forestry operations as point sources. They 
concluded that everything else associated with forestry is a nonpoint 
source. By way of explanation, EPA stated in the proposed rulemaking 
that ``the [Clean Water Act] and its legislative history make clear 
that it was the intent of Congress that most water pollution from 
silvicultural activities be considered nonpoint in nature'' and be 
addressed under section 208 of the statute. 41 Fed. Reg. 6233, 6234 
(February 12, 1976).
    EPA has proposed to eliminate the following activities from 
categorization as a nonpoint source: nursery operations; site 
preparation; reforestation; cultural treatment; thinning; prescribed 
burning; pest and fire control; harvesting operations; 
surface drainage and; road construction and maintenance. Instead, EPA 
proposes to redefine them as point sources. The proposed rule would 
give EPA or NPDES-authorized States the authority to designate 
silvicultural activities as point sources requiring NPDES permits. The 
designation would be triggered when the State or EPA determines that 
the silvicultural activity ``contributes to a violation of water 
quality standard or is a significant contributor of pollutants to 
waters of the United States.'' EPA states that it will only exert this 
authority in impaired waterbodies on a case-by-case basis where a State 
fails to develop a reasonable assurances program that BMPs can achieve 
load reductions in an impaired waterbody and the activities are not 
enforceable. In fact, EPA attempts to reassure the affected landowners 
by stating that it will only take 2 hours to prepare a notice of intent 
to file for a Federal permit. If the national forest system timber 
sales program is used as a guide, actually obtaining the Federal 
approval to conduct a harvesting operation is the real time question. 
Moreover, although EPA claims they will use this authority sparingly, 
this limitation does not apply to designations by States.
    There are a tremendous number of administrative and legal issues 
consequences involved in developing and imposing permit requirements on 
forest landowners. For example, EPA lists some criteria for determining 
what constitutes a reasonable assurance program but withhold saying 
which programs are approvable. Other issues include how a permit would 
even be administered and the ``miniscule'' issue of an EPA permit 
program that triggers consultation under the Endangered Species Act. 
Further, AF&PA has a far different interpretation of the EPA's 
statutory authority under the Section 402(p) provisions we would like 
to include as part of the public record. Mr. Chairman, we are going 
down an abyss that will lead to staggering economic consequences.

                            LEGAL AUTHORITY

    Not only does the forestry community disagree with the time 
required to obtain a permit, the reasonable assurance test and how it 
would work; the logic for requiring one is flawed. EPA provides two 
reasons for its change of interpretation. First, that the 1987 CWA 
amendments did not categorically exempt silvicultural activities from 
the stormwater program similar to the agricultural exclusion provision. 
Therefore, they assert the authority to ``close the regulatory gap'' 
and label all silvicultural activities as point sources. Second, 
Congress never explicitly stated that silviculture was a nonpoint 
source.
    We believe these farming and forestry activities are ``nonpoint'' 
sources and there is no legal or statutory authority for EPA to revise 
the regulations by eliminating the nationwide recognition of forestry 
as a nonpoint source activity merely to address some unidentified last 
resort situations on an individual basis. AF&PA believes that the 1972 
Act and its 1977 and 1987 amendments clearly intended not to regulate 
water pollution from most silvicultural activities through the Section 
402 or 404 permit programs. In fact, the 1987 Amendments enacted the 
Section 319 provisions to specifically address nonpoint source runoff, 
including silvicultural activities, through a State-based best 
management practices program. The Section 319 1987 Amendments revised 
the Section 208 program that required States to develop ``a process to 
. . . identify silviculturally related nonpoint sources of pollution'' 
and set forth procedures and methods to control to the extent feasible 
such sources. In November 1990 EPA promulgated stormwater regulations 3 
years after the 1987 Amendments were enacted. At that time, EPA 
declared that silvicultural point sources do not include the very same 
activities they claim today are point sources. In addition, an EPA 
Phase II stormwater report presented to Congress in 1995 did not 
identify silviculture activities as appropriate for regulation under 
the stormwater program. Similarly, EPA should not reverse its earlier 
positions in this proposed rulemaking, if they only took the time to 
review the forest water quality facts obtained from their own 
publications and contained in my statement.
    Even more confounding, in 1977, Congress enacted the Section 404 
discharge of dredged and fill provisions which specifically exempted 
the identical silviculture activities from the requirement to obtain 
permits. In the legislative report language of the 1977 statute, 
Congress stated: ``construction of farm and forest roads is exempted 
from section 404 permits. The committee feels that permit issuances for 
such activities would delay and interfere with timely construction of 
access for cultivation and harvesting of crops and trees with no 
countervailing environmental benefit.'' In another passage of the same 
report, the committee states ``no permits are required'' for activities 
listed in Section 208(b)(2)(F) through (I) ``for which there are 
approved best management practice programs.'' How can the same exact 
silviculture activities that are specifically exempt under one point 
source program be subject to Section 402 permits under another program? 
Mr. Chairman and members of the committee, the American people always 
thought it was the responsibility of the Congress of the U.S. to 
reauthorize statutes and enact laws, not the executive branch of 
government.

                       TOTAL MAXIMUM DAILY LOADS

    The second issue was the only focus of the FACA. States identify 
impaired waters (those waters not meeting water quality standards) and 
establish priority rankings and develop total maximum daily loads 
(TMDLs) under Section 303(d) of the Clean Water Act. Heretofore, a TMDL 
has been a numeric calculation of the amount of pollutants a waterbody 
can receive from point source discharges, nonpoint source runoff, 
natural background; with a margin of safety. Setting aside the 
scientific difficulty of actually calculating a ``daily'' load from 
nonpoint source activities, the proposed rule requires States to submit 
an ``implementation plan'' under Section 303(d). The plan would contain 
not only the numeric calculation but also eight required elements 
including control actions and measures that must be implemented before 
EPA would approve the TMDL. The big issue, and one that was unresolved 
in the FACA group report, is whether the implementation plan should be 
submitted for approval by EPA under Section 303(d) or submitted under 
303(e). We do not believe that Section 303(d) provides EPA with the 
authority to require implementation plans, nor does it provide, as EPA 
contends in the proposal, that implementation plans can be approved, 
disapproved, or taken over by EPA. This is not a minor legal issue but 
one that has enormous consequence for private landowners.
    For example, lets examine the situation where EPA rejects an 
implementation plan because the Agency does not believe the forest 
stream side zone (SMZ) management width requirement established by a 
multi-stakeholder State best management practices group is sufficient 
to protect water quality. The Agency, having given themselves the 
authority to take over the State program, is now free to re-write the 
implementation plan, change the State's SMZ requirement and then impose 
an NPDES permit requirement because the State allegedly does not have 
sufficient enforcement authority. This is not theoretical, but exactly 
the type of authority the Agency is proposing to grant to itself. 
Moreover, the Agency is exposing itself to countless citizen provisions 
if it does not exercise this authority to the satisfaction of 
environmental activists.
    According to EPA's August 1997 Memorandum published in the Federal 
Register, ``implementation of a TMDL depends on other programs and 
activities; a TMDL alone does not create any new or additional 
implementation authorities.'' The numeric TMDL itself must be approved 
by the EPA but no reading of the statute or its legislative history 
calls for the preparation and submission of an implementation plan 
under 303(d). We believe the continuing planning process described in 
the Clean Water Act's Section 303(e) provision is the implementation 
phase for the 303(d) listed stream segments.

                         ECONOMIC IMPLICATIONS

    These rules will impose serious constraints on economic growth and 
opportunity in our rural communities. EPA's economic analysis 
accompanying these proposed rules claims that between 600 and 1200 
landowners per year will be affected and total administrative costs to 
sources and EPA/States would fall between $3.72 and $13.22 million. Mr. 
Chairman, there is no way that the economic burden on landowners, 
loggers, State agencies and the Federal Government would be so limited. 
There are literally thousands of silvicultural ``events'' in each State 
every year. According to AF&PA's assessment, supported by the work of 
five independent forest economists at well-respected academic 
institutions around the country, the incremental economic burden to 
landowners, operators, communities and government agencies could easily 
exceed $1 billion annually, nationwide. The administrative costs alone 
of an NPDES program for silviculture, even in the unlikely event that 
it would be invoked sparingly, would exceed EPA's estimates by several 
folds. Because the economic impact will far exceed $100 million 
annually, EPA must comply with the Unfunded Mandates Reform, Executive 
Order 12866, and the Regulatory Flexibility Act by conducting a more 
detailed and comprehensive benefit-cost economic analysis of the 
proposed rule.

                    PROGRESS IMPROVING WATER QUALITY

    EPA contends that because silviculture activities are a cause of 
water quality impairment this gives them discretionary license to label 
such activities as point sources. While the forestry community 
recognizes that we are not perfect and we can improve our performance, 
the fact that silviculture can cause water quality impairment provides 
no justification to reverse 30 years of congressional writings. The EPA 
citation of silviculture's impact on water quality is selective and in 
some cases directly contradicts reports accompanying the proposed 
regulations. Every State with significant forest management activities 
has developed forestry best management practices or rules and submitted 
them to the Agency as part of the Section 319 nonpoint source program. 
The most recent publicly available data from EPA's website, the 1996 
national TMDL tracking data base, indicates that only 11 States listed 
silviculture as the cause of impairment on their Section 303(d) list of 
impaired waterbodies where total maximum daily loads would actually 
have to be performed. These are the only waterbodies where the Agency 
purports the rule will apply. Further, almost two-thirds of the stream 
segments listed were from one State. Placing these numbers into 
perspective and upon closer examination of the Federal and State 
reports, the following information clearly reveals that forestry is a 
relatively minor cause of water quality impairment across the country:
     Silviculture accounts for approximately 7 percent of the 
total impaired river miles nationwide;
     The relative amount of total river and stream impairment 
due to silviculture dropped from 9 percent in 1988 to 7 percent in 
1996;
     The number of river and stream miles classed as ``major 
impairment'' due to silviculture dropped 83 percent between 1988 and 
1996;
     The length of river and stream miles impaired from natural 
causes is about twice the length of impairment due to silviculture;
     Silviculture represents one-tenth of 1 percent of the 
impaired coastal waters;
     Silviculture represents less than 1 percent of lake 
impairment;
     EPA's 1996 National Water Quality Inventory report dropped 
silviculture from the chart as one of the seven leading sources of 
impairment to rivers and streams; and
     Compliance with State forestry best management practices 
is reaching 90 percent or more.
    To underscore the AF&PA record, I would like to share with you some 
of our accomplishments. Through the Sustainable Forestry Initiative 
(SFI) program, in which all members participate as a condition of 
membership, many members are not simply striving to achieve full 
compliance with Best Management Practices (BMPs) to protect water 
resources during forestry operations--they are providing a framework 
for going beyond conformance with voluntary guidelines. Equally 
important, member companies are committed to fostering the practice of 
sustainable forestry through landowner education efforts on all 
forestlands.
    In 1997, AF&PA member companies began reporting on the number of 
acres and miles of streams that are enrolled in wildlife and fisheries 
agreements with conservation groups and public agencies that specify 
on-the-ground management practices. Almost 11 million acres, 
representing 20 percent of the total acres in the SFI program, and 
4,286 miles of stream have been enrolled in these agreements. The SFI 
program has established State Implementation Committees in 32 States 
that receive more than $3.1 million from AF&PA members and allies to 
foster their responsibilities to promote SFI principles. While 
industrial forestland constitutes approximately 15 percent of the 
nation's forested acreage base, AF&PA members are also committed to 
expanding and promoting sustainable forestry into the broader forestry 
community.

                              A BETTER WAY

    It is plainly evident from the reaction by the majority of State 
agencies, State water quality agencies, Governors and others that the 
proposed rules were formulated without the advice and input from those 
stakeholder groups who will be ultimately responsible for implementing 
the regulations. Mr. Chairman and members of the committee, there is a 
better way. It requires additional funding of the Section 319 program, 
greater cooperation among multiple State agencies engaged in nonpoint 
activities, more partnerships with private landowners and stakeholders 
and better dialog between EPA Regional Offices and the States to make 
improvements to water quality happen. However, the Federalization of 
nonpoint source activities as proposed under these circumstances will 
create dissension and not accomplish the mutual goals shared by 
everyone. Once again Mr. Chairman, these proposed rules would interrupt 
the progress in improving water quality. Every State with existing 
Memorandums of Understanding among State agencies and Federal agencies 
in some circumstances, including your own, will need to be rewritten 
and negotiated all over again. Is this what we want to do?
    For industrial facilities and wood lot owners, this proposal will 
cause significant administrative delays. It will discourage the 
practice of sustainable forest management, create disincentives to 
expand forest cover in the U.S., stifle economic opportunity and 
prosperity in communities desperate to be part of the economic revival 
in this country and make it more difficult for people to make a living 
off their land.
    This concludes my remarks, Mr. Chairman, and I would welcome any 
questions you or members of the committee may have.
                                 ______
                                 
  STATEMENT OF DINA J. MOORE, RANCHER, KNEELAND, CA, ON BEHALF OF THE 
                 NATIONAL CATTLEMEN'S BEEF ASSOCIATION

    Good morning Mr. Chairman and members of the subcommittee. I am 
honored to be here today to address this subcommittee on behalf of the 
National Cattlemen's Beef Association. The National Cattlemen's Beef 
Association (NCBA) is the marketing and trade organization for 
America's one million cattle farmers and ranchers, representing the 
largest segment of the nation's food and fiber industry.
    While my full-time job is as a partner with my husband and family 
in a commercial cattle ranch and non-industrial timber business in 
Northern California, I am proud to actively participate in our local 
watershed efforts. I have done extensive work with the Environmental 
Protection Agency (EPA) on Total Maximum Daily Loads (TMDL), conducting 
Historical Narrative interviews, assisting in public outreach and 
education and working collaboratively with the EPA in building a 
consensus on the development of TMDL's. I also founded and am the 
current president of our local watershed working group--the Yager/Van 
Duzen Environmental Stewards, or YES. The Mission Statement of YES most 
clearly States one of my personal goals: ``[t]o ensure the 
Environmental Integrity of our watershed while maintaining our heritage 
and the economic sustainability of our endeavors.''
    EPA has, through the Section 319 program, empowered the States to 
take the responsibility for developing their own nonpoint source 
pollution management plans. By establishing the Proposed Regulatory 
Provisions, will EPA be promoting a duplicative effort to that of the 
States by taking over the authority of developing implementation plans? 
States understand the need for clean waters just as landowners of a 
working landscape understand the need for clean waters. Each State 
knows how best to achieve workable, realistic water quality goals for 
that State. In turn, the States can promote the implementation of Best 
Management Practices to the landowners. The more we can empower those 
who are responsible for managing the working landscape, the higher the 
degree of success. The best approach needs to get all the way down to 
the grass roots level. We need to enable those responsible for managing 
a working landscape to work from the grass roots level up to design and 
implement Best Management Practices in their own watershed. The most 
successful way of attaining clean water must come from the watersheds 
up, not the Federal Government down.
    The driving force is the fear of litigation from the more radical 
sector of the environmental community. Just as EPA is considering more 
stringent regulations, so is the National Marine Fisheries Service 
(NMFS) considering expanding their listings to now include Steelhead as 
threatened. Because of the threat of litigation and the fact that NMFS 
and the State of California Division of Forestry and Fire Protection 
are not in concurrence as to how to best protect Steelhead, NMFS is 
threatening listing the species as threatened. The more sensitive 
species of Coho and Chinook salmon have already been listed as 
endangered. Unfortunately, the landowner is caught in the crossfire 
between a State and Federal Agency. As is the case in our watershed, we 
as landowners and managers have just worked with EPA on the development 
of the TMDL. Now, we are faced with working with the State on the 
Implementation Plan and NMFS on their listings. Our watershed was 
declared as impaired because the level of sedimentation affected the 
cold water fisheries, in particular the documented decline of salmon 
and steelhead. So which Federal Agency is in charge? As non-industrial 
landowners we are dealing with multiple State and Federal agencies who 
are not working together collaboratively to resolve the problem. Those 
agencies have the same objectives, the same driving force of concern 
over litigation, but different agendas and timelines.
    The entire process and building of trust and collaboration begins 
anew each time another agency is brought into the process. The 319 
program could be the mechanism for integrated State and Federal 
efforts. The Federal Government should not place more constraints on 
the State by taking on more authority thus creating more fragmentation. 
They should be using their powers to encourage States to implement a 
``one stop shop'' where landowners can deal with all the agencies at 
one time and place. The resource, government and landowner would best 
served if government could address resource issues in a clear and 
consistent manner, with a single unified voice. There is no safe harbor 
for landowners that have worked collaboratively with a single agency.
    The private sector will clearly incur costs from more stringent 
regulation. That is evident in the Forests of California. Non-
industrial landowners are faced with having to cut more timber to cover 
the cost of greater regulation than they would like to from a 
stewardship or sustainable perspective. As more regulation is being 
mandated from multiple national and State agencies, the same land base 
and the same landowner is responsible for meeting the requirements that 
are set forth by those agencies. With this EPA proposed Regulatory 
Revision Federal Program being expanded, ultimately a cost will trickle 
down to the landowner and his only way of covering that cost is with 
heavier extraction from the land based resource that he manages. There 
is no compensation, reimbursement or incentive to the landowner for the 
time and knowledge that it takes to comply with regulation. As the 
landowners deal with more stringent regulation they will either hire 
help to work their land resource in their absence; or will they hire a 
professional consultant to help them weave their way through meeting 
the regulatory requirements of the different and multiple governmental 
agencies. Both are an out-of-pocket expense to the landowner, and the 
cost can be staggering. The monetary return that comes from a cattle 
ranching enterprise alone is minimal. The cattle and the range that 
they live on provide enough of an economic return to pay for their 
direct costs, overhead costs as well as provide families with a below 
poverty level of income--even when the cattle market is in an upswing. 
This enterprise alone cannot not cover the previously mentioned hidden 
costs. Other resources will need to be developed and extracted.
    While the argument is often made that there is grant money 
available, that too can be a cumbersome and unwieldy process. As 
landowners in a watershed that has been declared as impaired, we from 
the grass roots level are undertaking the burden of doing assessments 
and inventories. There are grants available to help, but many programs 
require matching funds, not taking into account the costs that we have 
incurred by writing grants or the time and energy spent hiring 
professional contractors to do the work and assessments for us. 
Although EPA does have the 319 and 205 grants available, the turn 
around time on getting those moneys is 18 months from the time of 
submittal of an application to an actual grant being awarded. That 
timeframe is simply put, outrageous.
    Delisting and listing of watersheds needs to be clarified. The 
Proposed Regulatory Provision does help ensure that listing 
methodologies are more specific and subject to public review. Again, I 
refer to our watershed and my own experience in the Yager Creek and Van 
Duzen River Watershed. None of the multigenerational landowners knew 
that it had been listed as impaired. Pacific Lumber Company is a 
neighboring landowner in the lower part of the basin. The concern has 
been expressed that this is more a political process than a scientific 
process. When EPA did the TMDL, it broke the watershed into three 
distinct areas: the lower basin, middle basin, and upper basin. Those 
areas were characterized by different geologic types, channel types, 
distribution of anadromous fish, vegetation types and land management/
ownership patterns. The results of a Sediment Source Assessment 
commissioned by EPA stated that natural erosion accounted for 84 
percent of the erosion in the middle part of the basin. This portion of 
the watershed is comprised of ranches, and land ownership is comprised 
of multigenerational families. Concurrently, on our ranch we 
participated in an ongoing study by University California Cooperative 
Extension on the affects of cattle grazing in a riparian area. After an 
on-ground assessment using 3 different Federal field assessment tools--
EPA's habitat field assessment data sheet, NRCS Stream visual 
assessment protocol and Bureau of Land Management's (BLM) proper 
Functioning Worksheet--our stream with the EPA assessment rated 18.40 
out of 20 (20 being the highest mark), NRCS rated 9.4 out of 10 and 
BLM's rated properly functioning. Given all of the above information, I 
question whether our portion of the watershed should have been listed 
as impaired. If this information had been available before listing, and 
if the small non-industrial landowners that manage the middle portion 
of the watershed had been involved in the public review process, it 
could have been a different outcome. Not only does the listing process 
need to be methodical and scientifically sound, there also needs to be 
a clear process, which can be undertaken to ensure that waterbodies can 
be delisted. There is no clear-cut avenue to take in a delisting 
process.
    It all gets back to the single working landscape, the individual 
land owner and his need to manage the resource in a sustainable manner 
that meets the needs of the resource and provides his family with a 
living. We, as multigenerational managers of a working landscape, know 
that we cannot mine the resource without long-term negative affects. We 
have been given the resource to hold in trust for future generations. 
Often times we feel that we are meeting the needs of government to the 
detriment of the environment we are managing. My counterparts in the 
mainstream environmental community recognize the cost to the 
environment of greater regulation and are speaking the same language 
that we are; let's provide greater incentives and less costly 
regulation. Let's look at tax incentives and cash incentives for 
encouraging stewardship. Let's hold out a carrot rather than wield a 
stick.
    My perspective and view is one of working together collaboratively 
on resolving resource issues on the working landscape. I firmly believe 
that those who have a longtime multigenerational commitment to taking 
care of the working landscape will protect it. Other options that 
become a reality when we are no longer economically sustainable are 
selling to larger industrial landowners or breaking large landscapes 
into subdivisions and ranchettes, which clearly cause a degradation to 
the environment. I recognize the important role and need that 
regulation has served in protecting the environment. Nevertheless, I 
firmly believe that further regulation will swing the pendulum in a 
direction that will not serve in the best interest of the resource, 
government or non-industrial landowner.
    Thank you, for the opportunity to participate in this important 
decision. I look forward to a day when we all are working 
collaboratively on resolving the issues of managing a natural working 
landscape.

      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                              ----------                              

                         SATURDAY, MAY 6, 2000

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Whitefield, NH.
    The committee met, pursuant to notice, at 1 p.m. at White 
Mountains Regional High School, Whitefield, NH, Hon. Robert C. 
Smith (chairman of the committee) presiding.

             IMPACT OF PROPOSES RULES ON FORESTRY PRACTICES

    Present: Senator Smith.

  OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE 
                     STATE OF NEW HAMPSHIRE

    Senator Smith. The Environment and Public Works Committee 
of the U.S. Senate will please come to order; and let me, first 
of all, express my sincere gratitude to White Mountains 
Regional High School for their courtesy.
    We're delighted to be here, and I want to also extend my 
appreciation to the EPA Administrator, Chuck Fox, who came all 
the way up from Washington to be here. You got to see some nice 
country, though, Mr. Fox?
    Mr. Fox. Yes.
    Senator Smith. Also, sitting here with me, of course, to my 
right is your distinguished State Senator, Fred King. I've 
invited him to be up here to take all the tough questions. John 
Pemberton from the Environment and Public Works staff and Ann 
Klee from the Environment and Public Works Committee and Will 
Wrobleski of Congressman Sununu's staff are here.
    Also from the Congressman Bass' office, Bill Williams is 
here. Bill, if you would like to make a statement--I was going 
to make a brief opening statement, but, if you'd like to make a 
comment or two, your statement will be submitted for the 
record. Then I'm going to turn it over to Mr. Fox.
    Let me just say that it's very appropriate that we're here 
in the beautiful White Mountains of New Hampshire to discuss 
the environment. There are 780,000 acres of White Mountains and 
the extensive private forests that are home to hundreds of 
miles of pristine waters and beautiful forests. In fact, water 
in New Hampshire covers 115,000 acres; everything from the 
small ponds to Lake Winnipesaukee. Each year, over a million 
summer visitors come up here, more summer probably then in 
winter, to enjoy our mountains and lakes and seashore. These 
forests--spruce and pine--are famous as the King's Woods for 
mast wood for ships in the early days of our history. They also 
add beauty to our landscape and wealth to the land.
    Much of this area has great historical significance. The 
Connecticut River, where the ``white-water men'' risked their 
lives to bring the loggers the logs from the northern regions 
to the manufacturing centers. The 2,100-plus mile-long 
Appalachian Trail is right near us. It stretches along the 
mountain from Georgia to Maine; or from Maine to Georgia would 
be better put, probably. It winds through the heart of the 
White Mountains and traverses many of New Hampshire's greatest 
mountains.
    And as the Senator from New Hampshire, and now the chairman 
of the Environment and Public Works Committee, I view it a 
privilege and an honor to protect these resources, not only for 
us here today, but for many generations to come. Our children 
and grandchildren will follow us into these beautiful, scenic 
mountain and forests, and we must protect the resources for 
them.
    I think the residents here have a lot to be proud of what 
our timber companies, tree farmers, and farmers are doing today 
to preserve the land, as well as the natural resources. I've 
been up here many times in the past 16 years, as all of you 
know, and I know that you are good stewards. You have a lot to 
be proud of and I'm proud of you for being good stewards. I 
could go on forever talking about that.
    The purpose of the hearing today is to examine the 
Environmental Protection Agency's proposed rule on Total 
Maximum Daily Loads, which we will probably call TMDLs 
throughout the hearing.
    Since the EPA released this proposed rule last August, 
we've spent a lot of time talking with New Hampshire folks, 
Senators, and our colleagues, and State and local officials 
across the country. Mr. Fox came in and had a private 
discussion with me about this proposal, as well. There's been a 
lot of communication and many of you may have attended the 
recent University of New Hampshire's symposium that we held in 
Bedford a couple of weeks ago. We talked there about the 
impacts of this rule if it were finalized.
    I'm usually asked, ``Why is the EPA pushing this very 
controversial rule through quickly?'' I think that Mr. Fox will 
respond to that. I don't have the answer, because it is hard to 
explain the urgency of the rule, but we'll hear from Mr. Fox 
shortly on that.
    EPA's desire to rush this is especially frustrating because 
Administrator Browner has admitted that EPA failed in the 
drafting of a clear rule. It's not a clear rule. Even Mr. Fox 
had suggested substantial changes to the rule will be 
necessary. He indicated as much in a letter to me. Almost every 
industry has expressed strong concerns about this rule. But 
we're still looking at a deadline of June 30 on the 
finalization of this rule.
    It's clear to me that it would be appropriate to slow that 
process down. Perhaps, EPA should look at a reissue of the 
proposed rule that provides all stakeholders an opportunity, 
not just the Washington folks or lobbyists in Washington, DC, 
but folks like you, to leave their views heard. We are probably 
going to have another one in the south in the next 4 to 5 
weeks, as well, so that we can listen to what's on your mind 
and, perhaps, take a time out on the rule before we implement 
it.
    While I may not have a full knowledge of the thought 
process that went into the proposed rule at EPA, I do know that 
the silviculture industry in this State should be commended for 
its stewardship and work to protect the environment. Mr. 
Manfredonia of Region I at EPA stated that ``silviculture and 
forestry operations are not, to the best of his knowledge and 
data, an issue for water quality.'' That's what he said. Yet 
today, we're faced with a rule, the proposed rule that could 
take effect as early as June 30; and I believe that could have 
a dramatic impact on the people who depend on this land and 
this water for their livelihoods in more ways than one. Because 
if it's not, this scenic beauty is not here, people won't come 
here and spend money as tourists; and also, if you have a 
woodlot, you could be in a position where you would not be able 
to earn your livelihood.
    This proposed rule, if it is implemented, would regulate 
you for the first time under a Federal permit, under the Clean 
Water Act. This could have a dramatic impact on the forestry 
industry, but it also could have a dramatic impact on small 
family forestry and agriculture operations--small farmers, and 
small loggers, woodlot owners where margins are thin, and the 
survival of these businesses themselves could very well be in 
jeopardy.
    I saw Tom Thomson here earlier. Tom's been down to 
Washington and testified on this issue. He's a tree farmer from 
Orford. He's fought through a lot of adversity, as you all 
have. He represents many of you in terms of what you went 
through with the Ice Storm here, where we helped to get some 
Federal funds to help you through that. But we should be proud 
of that stewardship and that conservation of open space.
    I think Federal permitting of forestry activities makes an 
assumption that you're not good stewards. That's my problem 
with it. I would rather be more in line with saying, ``Well, if 
there are problems here and we're not doing something right, 
then what are they? What's the science? Let's talk about it, 
and let's work together.'' Instead, let's look upstream a 
little bit and decide what we have to do to keep the water 
problem from having a negative impact on agriculture or 
forestry. What have people like Tom Thomson's done that would 
lead EPA to believe they need to impose a permit have him to 
cut down a tree? That's the bottom line.
    The EPA says the States will be implementing this program. 
But in New Hampshire, it's very important to note here, we do 
not have delegated authority to issue permits. So, we fall into 
the category the EPA calls a ``rare'' situation, but that's 
small comfort for those of us--those of you who are on this 
land, because the EPA under this ``rare'' situation would be 
responsible for issuing the permits in New Hampshire and not 
DES.
    Hopefully, Mr. Fox will be able to address that point, as 
well, as to whether or not there's some responsibility on that.
    In order to address the many concerns and I've heard on the 
implementation of the regulations and the concerns with the 
rule, Senator Mike Crapo of Idaho and I have introduced, with 
16 other co-sponsors, S. 2417, the ``Water Pollution Program 
Enhancement Act of 2000.'' This is not a hearing on that bill. 
This is a hearing on the issue of the proposed rule. I want to 
make this very clear, but I did want to note that the purpose 
of this legislation is to take care of three concerns that I 
think have been outlined in the hearings we've held over the 
past 2 months and, as well as, comments that I've heard from 
the New Hampshire environmental symposium a couple of weeks 
ago.
    First, the States are in great need of increased funding to 
implement nonpoint source programs, conduct monitoring to 
develop scientifically based water quality programs, and to 
issue permits, and list waters under existing requirements. So, 
we provide an additional several million dollars for States to 
do just that.
    Second, there are a lot of unanswered questions about the 
costs and scientific basis underlying TMDLs and their 
implementation, as well as, a host of alternative programs or 
mechanisms that exist at the State level that may be more 
effective to accomplish the same goals.
    In other words, is there any other way that we could 
accomplish the goal of maintaining clean water here in the 
North Country on our forest lands and on our agricultural 
lands, other than the implementation of a Total Maximum Daily 
Load rule?
    I don't think we've answered that question satisfactorily, 
and it should be answered, in my view, before we mandate more 
regulations or requirements on the private sector and the 
States.
    Also, our legislation directs the National Academy of 
Sciences to try and answer some of these questions prior to any 
implementation of any new rule.
    Third, to use a professional sports analogy, we need a time 
out. This came upon us awfully quickly. People now who make a 
living off the land are now hearing for the first time that 
suddenly they're going to need a permit to chop a tree down or 
to farm their land. We need a time out to analyze whatever 
battle we have to look at it carefully, and so that's why we're 
here today.
    And this is a great State and it's a great country, but I 
think we need sound science. It is important, as well, and I 
think we need to look at it very carefully.
    Let me just say that we will have as witnesses Mr. Fox 
first and then three other panels of very distinguished 
witnesses. At the end, if there are people here who would like 
to make a statement, 1 or 2 minutes, please, because we won't 
be able to do everybody; or ask a quick question of anyone, 
myself, or the staff, or Mr. Fox, we'd be glad to allow enough 
time for that. We'll see, if time permits, if we might be able 
to get a question or two directed to any others on the panels. 
We do have a limited amount of time.
    So, let me thank you again for being here, Mr. Williams.

  STATEMENT OF BILL WILLIAMS, STAFF MEMBER OF REPRESENTATIVE 
                        CHARLES F. BASS

    Mr. Williams. Thank you, Senator, this will be fine. I just 
need to go on record. I will read the last two lines of 
Congressman Bass' 2-page testimony; and the final two lines 
are:

    In closing, I want to again thank Chairman Smith and the 
committee for holding this extremely important hearing. I hope 
that the testimony presented today by myself and others will 
convince the EPA to reconsider this proposed rule.
    Thank you very much.

    Senator Smith. Thank you very much, Mr. Williams, and the 
entire statement will and--and/or letter from Congressman Bass 
will be made a part of the committee's record.
    [The prepared statement of Representative Bass follows:]
 Statement of Hon. Charles F. Bass, A Representative in Congress from 
                       the State of New Hampshire
    Chairman Smith and members of the committee, I would like to 
express my gratitude to you for holding this hearing today on the 
Environmental Protection Agency's (EPA) proposed rules regarding Total 
Maximum Daily Loads (TMDLs) from silviculture operations and for 
affording me the opportunity to submit my statement for the record. I 
have serious concerns about the EPA's proposal to reclassify 
silviculture from a ``non-point source'' activity to a ``point source'' 
activity under the Clean Water Act (CWA).
    The EPA's proposal would mandate regulation of all silviculture 
activities as point sources of pollution under the National Pollutant 
Discharge Elimination System (NPDES), opening up all private landowners 
to NPDES permit regulations. Specifically, this regulation would 
include previously exempt categories, such as nursery operations 
runoff, site preparation, reforestation activities, thinning, 
prescribed burning, pest and fire control, harvesting operations, 
surface drainage, and road building and maintenance.
    I am concerned that removing the exemption on these activities may 
unnecessarily impose heavy-handed Federal regulation on forestry 
activities. The silviculture industry has a long history of seeking 
common-sense solutions to achieve effective, sustainable land 
management. In a 1996 EPA report to Congress, forestry activities were 
identified as the smallest source of nonpoint source pollution, 
contributing approximately 3 percent to 9 percent of nonpoint source 
pollution to our nation's waters. Due to the relatively small impact of 
this industry, I believe that landowners should be encouraged to work 
directly with States and local governments to find answers to pollution 
problems. New Hampshire's forest landowners, through the use of Best 
Management Practices, the New Hampshire Professional Logger Program, 
the Sustainable Forestry Initiative, and Tree Farm Program, have 
contributed considerable resources and effort to protection of water 
quality.
    Furthermore, in the original rulemaking process following enactment 
of the CWA, the EPA recognized that Congress's original intent was to 
designate forestry activities as a nonpoint source of pollution. 
Therefore, this proposed rule would represent a departure from 30 years 
of regulatory practice. This change would subject landowners to citizen 
suits for permitted activities, not to mention potential fines, and 
necessitate Federal permits for most forest management activities, 
which would be subject to unnecessary and potentially costly delays. 
The burden of these rules could force landowners to forfeit their 
stewardship of the land in favor of giving into the ever-present 
pressures of development, which we can all agree is not in the best 
interest of the environment.
    Although we all share the common goals of categorically improving 
the quality of our nation's streams and rivers, we must not impose an 
excessive Federal regulatory burden that could cripple the silviculture 
industry. Instead, I would encourage continued cooperation between the 
Federal Government and the States to provide the necessary incentives 
to landowners to maintain healthy forests.
    In closing, I want to again thank Chairman Smith and the committee 
for holding this extremely important hearing. I hope that the testimony 
presented today by myself and others will convince the EPA to 
reconsider this proposed rule.

    Senator Smith. Mr. Fox has indicated that after his opening 
statement, he will be available for questions. This is a field 
hearing so we don't have to follow all the formalities that we 
do in Washington. That's what we're here for, to hear your 
views on these proposed rule changes.
    Mr. Fox, welcome. I appreciate your coming up here and 
taking the time out of a busy schedule to be here and to hear 
from our constituents.

     STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR, 
        ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC

    Mr. Fox. Thank you, Mr. Chairman, and Senator, it is a real 
pleasure to be here. It's rare that we get a chance to come 
outside of the Beltway for field hearings. We spent some time 
out in the forest this morning with Tom Thomson, and I couldn't 
agree with you more that there is some outstanding examples of 
stewardship in New Hampshire. They've been doing an admirable 
job of protecting water quality.
    Enacting the Clean Water Act of 1972 has dramatically 
improved the health of rivers, lakes, and coastal waters 
throughout the country. It has stopped billions of pounds of 
pollution from being dumped in the water and doubled the number 
of waterways that are safe today for fishing and swimming. Many 
waters today are thriving centers of health communities.
    But despite this tremendous progress in reducing water 
pollution, almost 40 percent of the Nation's waters as tested 
by the States still do not meet water quality goals. My earlier 
testimony to this committee in February described over 20,000 
water bodies identified by the State as polluted in 1998. It 
also described our effort, begun almost 3 years ago, to work 
with a diverse Federal Advisory Committee to review the TMDL 
Program and identify needed improvements in existing 
regulations.
    I would like to take this opportunity to reiterate that 
this is not a new rule. It is, in fact, a revision to the 
existing regulations, much as which were promulgated in 1985 
during the Reagan administration.
    This afternoon, I would like to work--focus on the work we 
have done since my February testimony with a range of 
interested parties to address the important issues raised in 
the proposed regulations.
    Mr. Chairman, I would also like to describe the 
Administration's strong opposition to the legislation you 
recently introduced with Senator Crapo calling for a delay of 
several years in finalizing revisions to the TMDL program 
regulations.
    Earlier this week, EPA and USDA released a joint statement 
describing areas of agreement on the TMDL rule. Mr. Chairman, 
I'd ask that a copy of the joint statement be included in the 
record.
    Senator Smith. It will be made part of the record.
    Mr. Fox. The key elements of the joint statement describe 
changes the EPA expects to include in the final TMDL rule on 
topics of interest to the USDA. For example, the joint 
statement outlines how EPA and USDA propose to address the job 
of restoring polluted waters that are impaired as a result of 
forestry operations. Our joint forestry proposal is discussed 
in much more detail in my written testimony.
    In April, I sent you a letter outlining the expected 
changes to the proposed rule in response to many comments we 
received. These changes emphasized that States will have to 
identify and clean up polluted waters through the TMDL program. 
The changes will give States more time, allowing them to tailor 
TMDLs to local conditions, and endorse voluntary programs by 
giving them full credit for the development of TMDL pollution 
budgets. The changes would also streamline the regulatory 
framework considerably. My written testimony provides more 
details on these changes.
    I briefly would like to turn to the legislation you 
introduced with Senator Crapo. The bill includes some important 
provisions expanding authorizations for State clean water 
grants. But the Administration must strongly oppose the bill 
because it would delay the final TMDL regulations by up to 3 
years and, perhaps, longer. It calls for a study of the 
scientific basis for the TMDL program.
    While we agree that there are technical issues associated 
with the development of TMDLs, the essential scientific bases 
for developing TMDLs and restoring polluted waters are well 
established. We respectfully suggest that there is no major 
scientific dispute related to the development of TMDLs that 
requires the attention of the National Academy.
    Section 6 of S. 2147 would prevent the finalization of the 
TMDL regulations until the completion of the study by the 
National Academy.
    An enactment of this proposal could result in the effective 
shut-down of the TMDL program in many States, as they and other 
parties defer work on TMDLs until the comprehensive studies 
mandated by Congress are completed. Sadly, Congress would be 
telling thousands of communities across this country that are 
eager to get to work to stand down, to pack up their clean 
water plans, and put them into the deep-freeze for the 
foreseeable future while a panel of scientists meets in 
Washington behind closed doors for almost 2 years to write a 
report.
    Mr. Chairman, yesterday, I received copies of letters from 
two New England States that also oppose this provision of your 
bill and indicated the support for EPA's changes to the 
proposed, and I ask also that these letters be included in the 
record.
    Senator Smith. They will be made part of the record.
    Mr. Fox. Finally, Mr. Chairman, in closing, I consistently 
hear from critics of the TMDL program that it is more of the 
old, top-down, command-and-control, one-size-fits-all approach 
to environmental protection. I've also heard many 
mischaracterizations and falsehoods that are simply 
irresponsible attempts to generate opposition to the rule. In 
fact, the TMDL program offers a vision of a dramatically new 
approach to clean water programs. This new approach focuses 
attention on pollution sources in proven problem areas, rather 
than all sources. It is managed by the States, rather than the 
EPA. It is designed to attain the water quality goals that the 
States set and to use measures that are tailored to fit each 
specific water body. This approach has proven to be effective 
in places like the Great Lakes, Chesapeake Bay, and Long Island 
Sound. It is an approach that will form the foundation of 
achieving clean water goals throughout the country.
    Thank you very much.
    Senator Smith. Thank you very much, Mr. Fox.
    Senator Fred King has indicated he didn't have an opening 
comment but wishes to speak.
    Senator.

  STATEMENT OF HON. FRED KING, SENATOR FROM THE STATE OF NEW 
                           HAMPSHIRE

    Senator King. Thank you, Senator Smith. I just wanted to 
say thank you for bringing this hearing to New Hampshire. It's 
certainly an extraordinary thing to have that happen, to have a 
field hearing on a bill that's as important as this. I do have 
a letter that I will submit into the record. I won't read it, 
because I know a lot of people are ready with comments that 
they'd like to make.
    Several weeks ago, I wrote to the congressional delegation 
relative to this rule. I received very positive comments back 
from our other Senator and two Congressmen. So, I believe that 
the New Hampshire delegation is well aware of the situation and 
how it will potentially impact our economy. From what I've just 
heard, the State will have an opportunity to participate in the 
implementation of this rule. I will tell you that I sit as the 
vice chair of the committee in Concord known as the 
Administrative Rules Committee. All the rules that are adopted 
by State agencies have to come to that committee for a review. 
So, if this follows what would appear to be the historical 
pattern where Congress passed a law, or the Clean Water Act, 
EPA implemented rules and allowed States to implement those 
rules, the Legislature then passes the law, and what happens 
ultimately in Concord, our Department of Environmental Services 
will also be writing rules. So, we'll be watching the 
rulemaking process very carefully.
    I think that the only comment I would make is that if 
anyone believes that you can conduct timber operations the way 
we historically do in northern New Hampshire by first getting a 
permit from the Federal Government, and dealing with the red 
tape, and still allow the timber operations to operate at a 
profit, it just isn't going to happen. If we're going to 
continue to harvest trees, we have to do it with sound 
techniques. To impose a Federal regulation is going to prohibit 
the cutting of trees. I will say that it is my personal belief 
that that isn't the role of Washington, anyway. I think cutting 
the trees is becoming a bad thing in the eyes of some people. I 
hope this isn't the case. Thank you.
    Senator Smith. Thank you, Senator King. Your letter 
addressed to the committee will be made part of the record.
    It's approximately 1:40 p.m. now; and at no later than 
2:15, I will move to the second panel. I'll just start with a 
couple of questions; and if anyone wishes to move up to the 
microphone, I'll try to recognize you at that time.
    One of the pieces of information that I came up with, Mr. 
Fox, was that on the GAO study, and please comment whether it's 
accurate or not, that, apparently, there are only six States, 
that were able to manage water quality under these rules, and 
only three of them had the majority necessary to develop the 
TMDLs for nonpoint sources. The State said that shortages in 
staff and resources are why there is such a lack of data.
    How do we comply with these additional requirements under 
this proposal, along with what Senator King just said about red 
tape. If you don't have the resources and the staff to do it, 
how do you propose to do that in the short period of time once 
the rule is implemented on June 30?
    Mr. Fox. You are correct. The General Accounting Office 
report did raise questions about the adequacy of our water 
quality data in this country; and I can't disagree with many of 
the conclusions that are included in that report. We do need to 
do a better job of making an investment in this country in 
providing high-quality data; but, I would respectfully suggest 
that there is ample data in the vast majority of the cases that 
we could take action today. That's what we did in the Great 
Lakes in 1978; that's what we did in Chesapeake Bay in 1985.
    The GAO Report, I think, importantly found that the more 
data we get, the more water quality problems we find. And it's 
very, very unlikely that there will ever be a situation where 
we are, in fact, doing TMDLs on the water that simply doesn't 
need it and it usually goes the other way around.
    Senator Smith. As I indicated in my opening statement, New 
Hampshire does not have the delegating authority to issue the 
Clean Water Act permit for point source. So, my assumption is 
that the EPA would have to implement that.
    Let's use a hypothetical that says the State develops a 
TMDL for a water body that is impaired by both non-both 
nonpoint source and point source activities; so, if that 
happened, would it be--it would be EPA's job to issue the 
permit in that scenario, I assume?
    Mr. Fox. The way the program is structured in New 
Hampshire, the State does have the lead in defining a list of 
waters that do not meet their standards. The State would have a 
lead in developing the TMDL itself. That TMDL would allocate a 
pollution budget for that water body, and then EPA would have 
the responsibility for the permits that are as part of that 
TMDL operation of those permits. However, many TMDLs will have 
nonpoint source and voluntary programs in them; and, of course, 
the State would implement those, and EPA would give them full 
credit in the pollution budget for those State voluntary 
programs.
    Senator Smith. How would the nonpoint source portion be 
implemented under that?
    Mr. Fox. I don't know New Hampshire as well as I need to, 
but many States have an agricultural cost-share program, for 
example, where you can estimate how many acres of land will be 
enrolled in conservation practices; there might be a buffer 
strip program as part of the State Forest Program. There are 
ways that we could start finding the kinds of pollution 
reductions that would come from a voluntary program; and based 
on that analysis, those credits would then be given to the TMDL 
program.
    Senator Smith. Just one followup, and then we'll take this 
gentleman's question.
    Using New Hampshire as an example now, who would make the 
decision whether a forestry or an agriculture operation is 
either a point source or a nonpoint source? Who would actually 
make that decision?
    Mr. Fox. I'm glad you raised the forestry question. It's 
the subject of a good deal of attention I've been hearing in 
this community. I would like to just say, unequivocally, that 
EPA's not going to be issuing permits for every time you cut 
down a tree. That's just not what we propose.
    Our initial proposal is simply focused at what we call bad 
actors. Operators that are, in fact, causing a significant 
water quality problem; States who need to make a scientific 
determination that they are, in fact, causing that problem; and 
it is only after the determination gets made, there can be any 
authority given to the State or the Federal Government to step 
in and require that Best Management Practices be used.
    Based on the comments that we've received from State 
foresters, we modified that proposal, because the State 
foresters were afraid that our initiative would upset a State 
forestry program, and my understanding is that New Hampshire 
has a very good one.
    And so the proposal, as it now stands, says that if you 
have a State forestry program that is achieving water quality 
goals, then there will be no permitting authority conveyed to 
either the State or EPA. Our goal is to really support the 
State forestry programs and achieve our shared goals in water 
quality.
    But in terms of your specific question: Who makes that 
determination? That would be made by the regulatory agency, 
whether it is the State or EPA; and in this State, being a 
nondelegated State, most of those decisions would be made by 
the EPA.
    Senator Smith. I would just say if you would state your 
name clearly for the clerk; and if it's not Smith or easy to 
spell, spell it, if you would?
    Mr. Demos. OK. My name is John Demos and I'm with the 
American Lands Alliance, which is a national environmental 
organization. I represent them in the Northeast up here. First 
of all, I would like to go on record as supporting the rule 
change.
    As you stated earlier, 40 percent of our riverways and 
water bodies are great in this country, and I believe, 
according to the EPA, about 215 million Americans, the vast 
majority of Americans, live within 10 miles of a polluted body 
of water.
    We'd also like to go on record as opposing your bill, 
Senator; although, we're very happy with what you're doing on 
the national wildlife refuge and your position on environmental 
riders.
    Mr. Fox. We are, too.
    Mr. Demos. Yes. I think this may be a tempest in a teapot 
for New Hampshire. If you look at statistics, it shows that--
official Government statistics--water quality degradation into 
silviculture in the State is like zero percent. It's very low 
for agricultural, too. So, unless, you know, more studies are 
done to determine that silviculture is causing the water 
quality problem here, any rule change is probably going to have 
very little effect.
    I was also talking to a logger here earlier who was very 
concerned, and I think there needs to be some clarification 
about this rule change, that this rule would affect all timber 
operations in the State, regardless; as the Senator has said, 
you'll have to get a permit to cut down a tree.
    And to go over it again, and you were touching on it a few 
minutes ago, my understanding is if--you would have to 
determine if it's a greater body of water, first of all; you 
would have to determine if silviculture was the major source of 
pollution, second; and then under the TMDL programs, it would 
only affect point source pollution; and the point source would 
mean a culvert, a pipe. That's the statutory definition, that's 
correct?
    Mr. Fox. Yes.
    Mr. Demos. Now, the fellow I talked to earlier, I believe 
there's a lot of misinformation out there. He is afraid that 
any timber operation would be treated as a point source. And I 
hoped that you could clarify that?
    Mr. Fox. You are a very well-informed individual. You said 
it precisely, and I'm not sure I could do better than that; and 
I would just sum it up and say that the silviculture provisions 
that we have proposed will have virtually no impact on the 
State of New Hampshire based on the current status of the 
silviculture in New Hampshire.
    What people don't always appreciate is I was confirmed by 
Mr. Smith's committee who represent water quality interests in 
the Nation. There are silvicultural problems in other parts of 
the country, but I think you've summed it up very well. It 
would have virtually no impact, in fact, all of New England. 
Our current statistics show there's only two very small 
segments in Vermont out of all of New England that would be 
affected by this.
    Mr. Demos. Thank you.
    Senator Smith. Thank you, Mr. Demos.
    Let me just say that since people are beginning to come to 
the mike, I do have my self-imposed 2:15 rule for this panel. 
Again, if you could ask your question, there will be a comment 
period at the end for anybody who wishes to make anything for 
the record. So, if you could try to make the question brief so 
that Mr. Fox, I, or whoever you ask it to can respond.
    Mr. Thomson. Thank you. I'll be as brief as I can. My name 
is Tom Thomson, a tree farmer from Orford. I have a statement 
and I've got a question addressed to Mr. Fox; but, first, I'd 
like to thank Mr. Fox for coming up from Washington. I've spent 
some time earlier in the woods with you and hope you come back 
in the future. And I will suggest that all hearings in 
Washington, DC be held outside of the Beltway.
    Senator Smith. Good suggestion.
    Mr. Thomson. The statement is: I would like to suggest that 
EPA increase the funding through Section 313, which would go to 
the State to expand Best Management Practices, as well as, 
education. But do it on a voluntary basis, not regulatory 
basis. I encourage you to use New Hampshire as an example for 
other States to follow.
    And I would like to ask you this question, Mr. Fox. Which 
is more environmentally damaging to our society, the tree farm 
or forest that we manage and work as a sustainable forest, 
protecting water quality, or the farm and forest being replaced 
by housing developments, shopping malls, and asphalt pavement, 
which we know today is urban sprawl?
    Thank you.
    Mr. Fox. Mr. Thomson, the more I spend time with you, the 
more I do realize there's a lot we agree on. I think it is 
important to state for the record that the forestry operations 
in effect can have tremendously beneficial impacts on water 
quality, and the comparison that you made is hands-down. The 
benefit for water quality would be the forest cover as opposed 
to a suburban landscape. Good forestry practices are an 
essential part of achieving our clean water goals, and I would 
agree with you.
    I would also add that we have proposed very sizable 
increases in voluntary section 319, funding for nonpoint 
sources. This was a program which was at $100 million 
nationwide 2 years ago. This year's budget, the President has 
proposed $250 million. So, it's a sizable increase. We are now 
working with Congress to try to get that increased, so it comes 
out to people like you and States like New Hampshire.
    Senator Smith. I'll just move to this side for this 
gentleman.
    Mr. Spalding. I have a question for Mr. Fox. My name is 
Donald Spalding and I'm from Whitefield.
    In ``Through the Looking Glass,'' Humpty-Dumpty declares 
that words ``will mean what I choose them to mean.'' What I'm 
referring to here is that phrase navigable waters of the United 
States regulated by the 1972 Clean Water Act, but now that's 
come to mean that swampy hollow in my back woods or the mud 
puddle big enough to attract the rats and the passing ducks.
    And so my question is: What, if any, guarantees are there 
in these proposed rules that the language will not be subject 
to the same kind of abusive, excessive, and over-reaching 
interpretations eventually?
    Mr. Fox. It is a fair question. We all draft these rules 
with the greatest intent in our democracy; and these rules have 
been interpreted by others.
    I would say that the Clean Water Act, as initially 
envisioned in 1972, not only defined waters of the United 
States in a very broad way, but the 1972 Act actually also 
defined a TMDL program which we're now trying to implement.
    We believe, and I don't just make this stuff up, I go 
through my attorneys, the Department of Justice, in developing 
our interpretation. We have a very thorough inter-agency 
process, and I'm assuming that future Administrations will do 
the same, and we're doing our best to implement the letter and 
the intent of the law, as well as, the regulations.
    Mr. Spalding. Thank you very much.
    Senator Smith. Yes, sir?
    Mr. Edwards. My name is Tim Edwards, and I'm from the 
southeastern part of the State; and it took me 2\1/2\ hours to 
come here today, because it's pretty important to us down 
there, too.
    I represent two different organizations, two different 
groups relative to sportsmen, but I also represent one of the 
largest landowners in the southern part of the State, and my 
question is for Mr. Fox.
    With any regulation or any rule, typically, there are 
specific reasons for putting that rule in place, but there are, 
very imminent threats for the need of that rule. Could you just 
take a minute to explain in New Hampshire, specifically, just 
one example of why this rule is necessary? Then please take a 
minute to explain within New England why this rule is 
necessary, specifically, for the silviculture issues? I think 
that would kind of help me a little bit to understand why the 
EPA feels that it's necessary to consider silviculture itself 
as a point source solution.
    Mr. Fox. That's a fair question. I should start with saying 
that I testified earlier that the silviculture provision of 
this rule will not have a very significant affect on New 
England. I would argue that it is the body of the TMDL proposal 
that would have the biggest significance and the biggest 
importance for New England.
    We've spent a lot of time talking about forestry; but, in 
the practical sense, it's a very small piece of this overall 
proposal.
    The urgency for this proposal, and why it is out there 
today, is there has been a whole lot of litigation over the 
past decade. The States throughout the country are beginning to 
implement the TMDL program like they've never implemented it 
before, and we've received a lot of interest from the States to 
craft a national framework for how this program is going to be 
used over the next decades. And we convened a diverse Federal 
advisory committee to help us develop recommendations and hear 
recommendations on the basis of those proposals. This has been 
basically 3\1/2\ years in the making, and it's been in response 
to a lot of concerns by States and litigation around the 
country.
    Mr. Edwards. [Off-microphone] And [inaudible] to that, but 
what--give me a specific example in New Hampshire?
    [Senator Smith instructs the Court Reporter to just take 
testimony only from people speaking at the microphone.]
    Mr. Fox. Well, in New Hampshire, I know the next witness 
will give us the details, but there are some, at least, dozens, 
if not a few hundred, of waters identified in the State as 
polluted and not meeting water quality standards.
    I know the Merrimack River is on the list. As we were 
coming up here, we crossed it a couple of times.
    Mr. Edwards. Specifically related to the silviculture?
    Mr. Fox. That's what I said. The silviculture proposal will 
not have as much of an impact here in New England; but, I'll 
tell you, it will have an impact out in the Pacific Northwest.
    Mr. Edwards. [Speaking from audience.] Well, why would the 
rules----
    [The Court Reporter interrupted the proceedings and asked 
Mr. Edwards to come back to the microphone to speak.]
    Mr. Edwards. I apologize. I thought I could get a specific 
answer, and I obviously didn't.
    I'll ask the specific question again: With any rule or any 
regulation, there is typically a need or an imminent threat to 
cause the necessity for the rule. Within New Hampshire, I'm 
looking for just one very specific example of why this rule 
change is necessary within this State related to the 
silviculture industry? And it's a very simple question.
    You've come to New Hampshire and we appreciate that, and I 
would expect that you would have one specific example related 
to the silviculture industry. I'm very aware, as a sportsman, 
of the issues surrounding the Merrimack River, the Androscoggin 
River, and the Ammonoosuc, and many other rivers here, and, I'm 
actually, a strong proponent of the Clean Water Act. It's a 
good law. But I am also looking at groups, like myself, who are 
very good stewards of the land and we don't make a lot of money 
off of the land. We make, perhaps, just enough each 7 years 
from the logging to pay the taxes to leave it in open space. 
And down in the southeastern part of the State, and Senator 
Smith will, perhaps, confirm this, we've got a major problem 
with development. And one of the issues right now is in the 
last 2 years, we've seen hundreds and hundreds of acres put up 
for development purposes, primarily, because it's getting 
tougher and tougher to make money by keeping it in open space 
and be able to continue to pay the taxes, even with the current 
use statutes in the State. And this is just one more burden 
that looking at my piece of property, which is one of the 
largest pieces of property in the southern part of the State 
and very valuable, if I were to sell it and have it developed.
    I'm just trying to understand how am I going to continue to 
keep that in open space while having to be concerned that I may 
get, and I use this term loosely, but it's a couple of 
environmentalists that come up and decide that we are doing 
something wrong, they petition the State House that something 
has to be done, and then, before I know it, I'm into a full 
regulatory issue with EPA and I'm having to deal with things on 
a point source solution, and I might get to the point where I 
don't have the money to pay the taxes on it any more.
    And I guess this goes back to the other question that Mr. 
Thomson had: What is more important to the EPA? And, you know, 
is it open space or is it developing it?
    And I really am looking for one very specific example in 
New Hampshire that shows the need for this rule. I don't want 
to hear that it would affect us, because it will affect us. As 
soon as a rule is in place, there are always small factions, 
and I deal with this both as a sportsman, as well as, a 
landowner and, as well as, an ordinary citizen; there are 
always small factions that once a rule is put in place, those 
small factions focus on that rule and they use that rule to the 
extreme.
    So, this is one more rule; and, we, in New Hampshire, are 
very careful, especially, with our House of Representatives and 
our Senate, that we do not put rules in place, unless there is 
a necessity for that rule, because rules can be abused.
    Mr. Fox. Well, I honestly don't have the answer that you 
want to hear; but I will very distinctly say that there are 
provisions of this rule that don't affect some States. There's 
a provision here dealing with concentrated animal feeding 
operations. This doesn't affect the State of New Hampshire 
much, either. This is a national rule, a national scope, and 
that's how we've developed it; and I can also tell you, and we 
won't do it now, but there's a whole lot of protection in here 
to prevent people like you from being subject to citizens' 
suits, and I don't think, frankly, that's a realistic end 
point, either.
    Senator Smith. Let me ask it a different way, Mr. Fox. 
Regarding the impact on say, a woodlot owner, how if the rule 
passes, if he wants to do some activity on his woodlot, cutting 
trees, for example--how is he going to know whether he has a 
point source? How's he going to know whether the water is 
impaired? How's he going to know whether he needs a permit 
before he cuts his trees? How will he know this? Or does he 
have to petition somebody at the EPA to go out and log?
    Mr. Fox. It's actually going to be, I think, fairly 
straightforward. First and foremost, the State has an 
opportunity to have a statewide forestry program that is 
protective of water quality. The State will have 5 years to do 
that. If the State's program--and by all attempts that occurs, 
the State will probably meet that certification; if that 
program's adequate, there's no permitting authority.
    Second issue, say, that the State does not have an adequate 
program in time, which we find it inadequate, we are now in a 
different position.
    First off, there is no authority whatsoever for us to issue 
permits, unless that water is defined as impaired by 
silviculture. The citizens can get that information from the 
State. We publish it on the Internet. It's widely known of 
whether it's polluted water; and if there is polluted water, 
again, the permit is only going to be required when the 
regulatory agency makes a specific finding of the land that is 
causing the problem.
    Senator Smith. All right, but let me go one step further; 
and then I'll take some questions.
    Let's just say that somebody on their woodlot decides to 
conduct some activity, and a citizens' group sues EPA, because 
they claim you're not enforcing the Clean Water Act as 
prescribed under the rule. What happens? Wouldn't that person, 
forester, or individual, have to stop his activity pending that 
lawsuit?
    Mr. Fox. The short answer is: I don't believe so. But I can 
spend some more time with my lawyers and your lawyers. As I 
talked about this earlier, first, the citizens don't have a 
permit under which to make a lawsuit or make a challenge; so, 
the citizens would be challenging through a petition process if 
the State or the Federal Government failed to issue a permit.
    Second, you know, if we rejected that, we would then find 
ourselves in court, and the judge would have to make a finding 
that the State or the Federal Government acted arbitrarily and 
capriciously, which is a very high standard. So, I don't 
believe that is really going to happen. But we do have a very 
litigious society today, and I'm not going to say that there 
aren't any attempts at that, but I just don't think that's a 
practical point based on how we can stretch this rule.
    Senator Smith. I believe that you sincerely believe that. 
My concern is that litigation does take time; it takes a long 
time. And that, you know, a year or two in court by some 
citizen group that has no interest in the land in question 
could very well have a severe hardship on an individual for no 
justification if there were no water quality standards being 
violated.
    One of my concerns is that innocent people would be 
subjected to this when, in fact, there was no reason for this. 
If they are violating the water standards, that's another 
issue, obviously; but, anyway, thank you for your answer.
    Yes, sir?
    Mr. Hall. Thank you. Thank you, Senator. Alan Hall. I'm the 
Executive Director of the National Farm Bureau. I'd like to ask 
Mr. Fox some questions about the costs to agriculture and the 
forestry industry.
    What are EPA's cost estimates for these particular 
industries?
    Mr. Fox. We are revising the cost estimates based on 
comments that we have received. As we proposed this, we 
estimated a national cost for the forestry provision of about 
$10 to $13 million nationwide, based on the economic analysis 
that we did.
    Mr. Hall. And agriculture?
    Mr. Fox. The agriculture costs under this, I'm not sure. We 
found fairly insignificant costs on agriculture as a result of 
this; and the reason I say that, just so that you'll understand 
this, we did our costing analysis looking at the impact of this 
rule, and that is an incremental cost analysis.
    It was, actually, the Reagan administration that first 
required nonpoint sources to be included. So, we look at the 
costs, the incremental costs associated with this rule, as 
opposed to the existing base line; and in the average, it cost 
agriculture quite minimal.
     This is not in a vacuum. We didn't just create this with 
no existing rule that's out there.
    Mr. Hall. When will you be able to release the particular 
estimates?
    Mr. Fox. We release these pursuant to the Federal law, 
Federal Executive order. We give the proposal and the final, as 
well.
    Mr. Hall. Thank you.
    Senator Smith. Yes sir?
    Mr. Pratt. I am Representative Leighton Pratt from 
Lancaster, and my question is concerning if we had a forest 
plan--can't think of the proper title--but forest Management 
Plan that's being carried out at the State's University, will 
that be effective?
    Mr. Fox. Absolutely. My experience shows that in most 
cases, that is absolutely going to be effective; and it will be 
sufficient for me in applying to these rules, that's right.
    Mr. Pratt. Thank you.
    Senator Smith. Yes, sir?
    Mr. Derose. Yes, my comment will be to the Senator----
    Senator Smith. If you could just give your name?
    Mr. Derose. I'm sorry. My name is Joe Derose, D-e-r-o-s-e, 
and I'm a music teacher at Profile High School, and I'm here 
with my friends representing the Dalton Gang. We have property 
up on the Dalton Mountain. We're a cowboy and shooting club.
    My question is this to you, Senator, because, Mr. Fox, I--
you're paid by the EPA, and you and that great bureaucracy up 
there, your jobs are dependent upon you doing what you're doing 
today, and you do a very good job at it. So, with all the 
smiles and all the politeness, I'm going to change that a 
little bit.
    Senator Smith, why should I believe that the EPA or any 
other government bureaucracy that is so top heavy now and have 
forced their way into our lives, to such an incredible degree, 
should keep their word anybody anything? I'm looking at the 
current Administration. Why should we believe that you people 
aren't liars----
    [Applause.]
    Mr. Derose [continuing]. Liars? That's the question I'm 
going to ask of you.
    Senator Smith. Well----
    Mr. Fox. I see I don't get all the tough ones.
    Senator Smith [continuing]. Well, I guess I could take the 
easy route out and say, ``I'm not a member of the 
Administration''; but I think that faith and trust in 
government, government officials, and how one conducts him or 
herself in government has to be earned. I think there is ample 
cause for many people in our country today to be dubious of 
actions of our Federal Government in many areas; there's also 
many reasons for us not to be proud of some of the things that 
our Federal Government does. But I just want to point out here, 
in fairness, I think that everybody has the same motive, in 
terms of wanting clean water, and clean air, and beautiful land 
to enjoy for future generations.
    I'm involved in the Everglades restoration, for example, 
which doesn't have anything to do with New Hampshire, except 
for the fact that, maybe, your grandchildren 1 day might like 
to go down and see alligators. You cannot see them in the White 
Mountains; at least, I don't think so.
    And so, my view is this: What is the best way and this is a 
sincere difference, I think, that I have with the 
Administration on this--what is the best way to ensure that for 
the future that we will have clean water?
    Now, we're taking a rule here now; and if you look at the 
true background of this proposed rule, you would have to say, 
because the EPA says it's going to delay the permit requirement 
for 5 years, well, it's going to review the Best Management 
Plan. But it takes time.
    And so, I would have to say: ``Is there such an urgency 
that this rule would have to be put in by June 30?'' That's 
less than 60 days away. In other words, have been up here 
managing your lands for decades, centuries. Have we created 
some problems around the country? Probably more in other areas 
than in New Hampshire, yes.
    But what is the best way to resolve this? Is it to have 
some other rule which almost criminalizes the landowner, in the 
sense, that he's got to or she has got to respond to some 
permitting requirement? Or would it be better to come and say, 
``Look, we've got some problems and we need to do this a little 
better. Here are the reasons why we have to be careful how 
close we cut trees to streams.'' Get the science out of what 
happens.
    We used to have the people from the National Environmental 
Protection Agency tell us that we shouldn't put any trees 
across a stream, because it blocked the water; but, in fact, we 
find out that fish spawn in those pools.
    My point is that I don't think it's so urgent that in the 
next 60 days to implement this plan. I'd rather take the next 6 
months to a year and get the science--and it's not 3 years or 
2, it's 18 months under this process--to find out what science 
we have on this, and find out how good it is, and that's all. I 
think that if that were to be done, if that process were to be 
implemented, instead of proposing this rule assuming that all 
or many folks are going to be bad stewards, and we need this 
rule, we need the permitting, we need to make you aware that 
you're going to have to pay a fine or buy a permit, and then 
you're going to be punished if you violate this rule.
    Rather than that, I'd rather say, ``Let's find out what it 
is we need to do right,'' so that we're not creating dirty 
water down the road. Furthermore, someone just said it in a 
question, that we're not creating parking lots; and how does 
the development of industrial parks on the land that could be 
maintained in perpetuity for the use of all of us? That's my 
own view. Is it so urgent after many, many centuries of working 
this land that it's got to be done in the next 60 days? And I 
am not--I just cannot believe that that is the case; and that's 
where I'm coming from.
    [Applause.]
    Senator Smith. Yes, sir?
    Mr. Cherry. Mel Cherry, Conway, NH, and I would like to ask 
a question of Mr. Fox. Do you own any farmland or forestry 
land?
    Mr. Fox. No, I don't.
    Mr. Cherry. Do you own any land?
    Mr. Fox. Yes, I do.
    Mr. Cherry. Well, may I ask how much?
    Mr. Fox. It's probably a quarter acre.
    Mr. Cherry. Thank you. Thank you, sir.
    [Applause.]
    Senator Smith. Senator King.
    Senator King. Yes, I would like to ask a question.
    I've lived on the banks of the Connecticut River here for 
about 40 years; and every spring, when the snow melts and the 
water comes and we have flood conditions, the water looks like 
coffee grounds. The brooks that are running off the mountains 
look like you could go out and walk on them. That's been going 
on since time began.
    When the water is going down, all the fish are still there, 
the muskrat and its mate, and so on, are on the shores, the 
ducks and geese are healthy. What is so different about that 
and this issue of a runoff from timber harvest? What are you 
going to do about that? How are you going to prevent nature 
from melting that snow and contaminating the rivers in the 
future?
    Mr. Fox. Not only will we not prevent nature from melting 
snow--I'm really not sure that that would in any way--I think 
that that is a pollution problem you just described.
    My understanding of New Hampshire's pollution problem is 
they're mostly related to bacterial and microbiological 
contaminations from inadequately treated sewage from some 
cities and failing septic systems, that there are some problems 
associated with industrial facilities; but I do not think of 
New Hampshire waters as polluted by sediment.
    Senator King. Well, I was describing, what happens. One 
July, the Connecticut River went up its banks and all the 
cornfields were flooded. What I'm describing is what nature 
does to the rivers on an ongoing basis. Timber harvests do not 
create pollution from sewage, either.
    So, with the natural course of a timber operation, it may 
or may not provide the same type of issues in these brooks and 
streams. It happens every year on an annual basis. It doesn't 
do any permanent damage.
    Mr. Fox. In fact, timber operations will tend to stop that 
kind of stuff because of the forestry that streams are much 
more beneficial of pure water quality.
    Senator Smith. I see two gentlemen standing. So, we'll make 
these the last two questions, so that we can move to the next 
panel.
    Yes, sir?
    Mr. Kleen. I thank you, Senator. I'm Rich Kleen with New 
Hampshire Citizens for a Sound Economy here in Concord. Just a 
brief question for you, Mr. Fox, a point of clarification on 
your remarks. This is not a new rule. It's a revision.
    Is it not true, though, under the revision that the EPA if 
it rejected a TMDL, it would require a Clean Water Act, some 
permit for a nonpoint source, and isn't that a change from what 
currently exists?
    Mr. Fox. I would like to make this perfectly clear, 
because, apparently, this is one of the obvious misconceptions 
that I've heard.
    We require no permits for nonpoint sources. We never have. 
We never will. We don't have the authority to do so, and that's 
just, frankly, a falsehood that's been spread.
    Mr. Kleen. Thank you very much.
    Senator Smith. Yes, sir.
    Mr. Hounsell. Thank you, Senator. My name is Bill Hounsell. 
I'm from North Conway, NH. I work as a consultant to the 
environmental end of Federal issues through local communities. 
From the lowest level, I work.
    My question would be: In New Hampshire, the people in the 
early 1980's passed the constitutional amendment to our 
Constitution that says that if our legislature passes some 
laws, mandated programs onto us, that they also find a way to 
fund them on the State level.
    Is there any consideration--Senator Smith offered, as his--
part of his bill, a funding; and that issue is how to fund it? 
Is there any consideration as this EPA rule is impacted onto 
the State of New Hampshire that our DES is also receiving 
Federal money that would bring aboard some of the engineers 
that would help oversee it? Eighty percent of our Department of 
Environmental Services are now funded by Federal grants. So, 
when you say we have our Department of Environmental Services, 
we do have in our Federal Government.
    And finally, my simple question is to you, backing up the 
Senator's bill, is that part of what's already in there? If 
not, shouldn't we take the time to find out how the funds are 
going to come in, rather than just leave it to Senator King and 
the Legislature to figure out how to do it?
    Mr. Fox. In listening to comments on our proposal, the 
State's raised the funding issue, repeated it to me, and I 
think this is a very important one. We were successful in 
working with the President and the White House, including a 
very sizable increase in this year's budget for the TMDL 
program. We have increased the two main accounts that affect 
this one. It's called section 106, State Grants Account; and 
we've increased this from a base line of $150 million up to 
$250 million--I'm sorry, a $100--we've added $45 million to 
that. We took the Section 319 program from $100 million up to 
$250 million; and so, this has been a very sizable increase.
    Now, is it enough? Would we like to see more? Of course, we 
would; but we're having a tough enough time to try and get this 
one through Congress; given the budget resolutions that 
Congress has passed, this is not a bad place to start.
    Mr. Hounsell. And a second, a followup, if I could?
    Senator Smith. Yes.
    Mr. Hounsell. The USDA is on this rural development. Also, 
are you taking into consideration funding some grants through 
their program for communities under 10,000 that would be 
impacted by this? Or is that another avenue for funds that 
hasn't been contemplated?
    Mr. Fox. That's a very good idea, and I'll take that back. 
Thank you.
    Mr. Hounsell. Thank you.
    Senator Smith. I think that's for legislation. We have a 
bill out. It's $750 million to assist the Department of 
Environmental Services and other similar departments around the 
50 States. So, in that we do increase the money considerably 
from what it is now, to, I think, it was in the vicinity of--is 
it $150 million?
    Mr. Fox. Right.
    Senator Smith. $150 million nationwide.
    Let me thank you, Administrator Fox, for taking the time to 
be here. I know there were some tough questions and--but I also 
wanted--to compliment every questioner because you were very 
polite and considerate. You offered your views, and we 
appreciate that. These are tough issues that we all face, and 
we're trying to deal with them as best we can in terms of our 
own philosophical views. Oftentimes, Congress and 
Administration doesn't agree. It's not unique. It happens a 
lot. Even if it's the same political body and, many times, we 
have major differences in Congress and the Administration; so, 
I want to thank you very much.
    Mr. Fox. Thank you.
    Senator Smith. And you're welcome to stay if you'd like----
    Mr. Fox. I will.
    Senator Smith [continuing]. Or you can leave. There will be 
some questions at the end, if you----
    Mr. Fox. No, in fact, I had planned on staying for the 
whole hearing. If there are any questions, I'd be happy to 
respond.
    Senator Smith. Thank you.
    And at this point, let me call on the second panel, which 
will be Mr. Harry Stewart, the Director of Water Division, New 
Hampshire Department of Environmental Service; Mr. Phil Bryce, 
the Director of the New Hampshire Division of Forests and 
Lands; Commissioner Ronald Lovaglio of the Maine Department of 
Conservation; and Mr. Ronald F. Poltak, Executive Director, 
Northeastern Interstate Water Pollution Control Commission.
    While you're being seated, gentlemen, let me just indicate 
that your entire statements are a part of the formal record. If 
you have any opening comments you'd like to make, if you could 
summarize them in 2 to 3 minutes, I'd appreciate that; and your 
statements will be made part of the record.
    Mr. Stewart, why don't we start with you.

  STATEMENT OF HARRY STEWART, DIRECTOR OF WATER DIVISION, NEW 
   HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SCIENCE, CONCORD, NH

    Mr. Stewart. Thank you, Mr. Chairman. First of all, before 
I start, I have a letter here from Governor Shaheen, which I 
will present to you----
    Senator Smith. That will be made part of the record.
    Mr. Stewart. Governor Shaheen indicates strong support for 
the forest products industry in this letter, requests another 
round of public review and comment with regard to the TMDL 
rules, once the revised rules have been finalized, 
particularly, for the forest products component of the rule, 
and also requests consideration of increased funding at this 
stage for the TMDL rule which is desperately needed.
    Mr. Chairman, I am Harry Stewart, director of the Water 
Division, New Hampshire Department of Environmental Services.
    Thank you for the opportunity to testify before the Senate 
Committee on Environment and Public Works on the EPA's proposed 
TMDL rules.
    NHDES and other State environmental agencies across the 
country were highly critical of the EPA's proposed TMDL rule, 
dated August 23, 1999. The regulated community and the public 
were also highly critical, as demonstrated by the approximately 
30,000 comments received by EPA on the proposed rule. NHDES 
viewed these proposed regulations as being too burdensome on 
both the State environmental agencies and the regulated 
communities, and as too prescriptive, removing the flexibility 
of States to tailor programs to State-specific priorities and 
needs.
    Since then Chuck Fox, Assistant Administrator for Water at 
EPA, should be commended for his efforts to be responsive to 
these concerns, particularly, the State concerns. In letters 
dated April 5, 2000 to key Senators, including Senator Smith, 
and the joint statement between EPA and the Department of 
Agriculture, dated May 1, Mr. Fox has indicated numerous 
changes in the proposed rule which will address a high 
percentage of the issues raised by the States and other 
parties. These proposed provisions go a long way to address the 
concerns of the States by providing greater flexibility to 
tailor TMDL approaches to State-specific needs. In my written 
testimony, I go into detail about these changes.
    Similarly, the joint Department of Agriculture and EPA 
statement indicates a very positive step to address the 
forestry concerns and suggests an approach that is likely to 
work in New Hampshire. Under any reasonable criteria, New 
Hampshire has an ``adequate'' program; ``adequate'' is the term 
that's been used in some of the EPA documents. With an 
``adequate'' program, a State falls out of the scheme of the 
TMDL regulations with regard to silviculture.
    By any reasonable criteria, New Hampshire has an adequate 
program in place, which includes three critical elements: 
Implementation of best management practices, training and 
outreach, and compliance and enforcement.
    With regard to compliance and enforcement, in New 
Hampshire, when water quality problems caused by forestry 
operations are identified, they are typically short term and 
are corrected through the joint efforts of the Department of 
Resources and Economic Development--and Phil Bryce, the State 
Forester, will be talking in a moment--and NHDES. These efforts 
virtually always first included compliance assistance; and, 
when necessary, enforcement under State statutory authorities. 
In fact, we expect that site-specific water quality problems 
would virtually always be addressed under State programs long 
before they rise to any threshold for Federal involvement, such 
as long-term water quality impairment.
    Although, we are pleased that EPA has been very responsive 
to the concerns expressed by the States and other parties, we 
have not yet had an opportunity to examine the actual wording 
of the proposed revisions which address these concerns. 
Consequently, we urge EPA to publish the actual language of 
proposed changes for public review as soon as possible, 
especially for the forestry provisions, to allow evaluation and 
comment on the changes prior to final promulgation. This 
approach is appropriate, considering the magnitude of the TMDL 
comments and expected changes.
    Finally, please note that, as in most other States, New 
Hampshire's TMDL program is significantly underfunded. 
Additional Federal support for State development of TMDLs is 
needed, irrespective of the results of the EPA rulemaking.
    Additional funding is proposed in both Senate bill 2417 and 
the President's proposed budget. The President's budget 
contains $45 million for Federal fiscal year 2001, which 
translates into just over $200,000 for New Hampshire to assist 
with TMDL development. We have several concerns with the 
proposed funding in the President's budget. This is a good 
start, but we estimate that we need around $420,000 for an 
adequate TMDL program in New Hampshire.
    Due to the way a new EPA Formula for the section 106 moneys 
work, Senator, if the appropriation were to increase by $5 
million to $50 million, all of the extra funds would go to New 
Hampshire, Vermont, Rhode Island, and, I believe, 10 other 
States, because of the way section 106 formula works. So, if 
the present funding were increased by $5 million, the 
additional funds would go only to New Hampshire and 12 other 
smaller States.
    Under the President's fiscal year 2001 budget, the State 
match requirements for the proposed new TMDL funding are also 
too rigid to enable New Hampshire to access all of this money. 
For the new money, there's been some changes in the rules in 
terms of the State match proposed, which make it very difficult 
for New Hampshire, particularly with the education funding 
problem we have here to use, even the $200,000. So, we suggest 
that the match requirements be changed.
    We urge you to provide additional funding for water quality 
analysis and TMDL development with minimum match requirements 
and maximum flexibility on how the Federal funds may be 
matched. This is the only way to ensure that the funds will be 
fully utilized by all States to make significant progress 
toward the goals of the Clean Water Act.
    Thank you for the opportunity to testify on the proposed 
TMDL regulation. We look forward to working with Congress and 
the EPA to ensure that our Nation's waters are protected and 
improved, while ensuring that our forest products industry and 
other traditional activities can continue to flourish in an 
appropriate and responsible way. Thank you.
    Senator Smith. Thank you very much, Mr. Stewart.
    Mr. Philip Bryce.

STATEMENT OF PHILIP BRYCE, DIRECTOR, NEW HAMPSHIRE DIVISION OF 
                 FORESTS AND LANDS, CONCORD, NH

    Mr. Bryce. Yes, thank you, Senator. I have submitted a 
written copy for the record. My name is Philip Bryce. I am 
director of the Division of Forests and Lands. Thank you for 
the opportunity to testify today on the EPA's proposed TMDL 
Rule.
    The Division of Forests and Lands is the primary State 
agency responsible for the enforcement of forestry laws, 
including, in cooperation with the New Hampshire Department of 
Environmental Services, those protecting water quality. Law 
enforcement officers from my agency regularly conduct onsite 
inspections of logging operations to ensure compliance with 
water quality and other timber harvesting laws.
    The State also provides training in compliance with 
forestry laws and implementation of BMP's through the 
Professional Logger Program, which is a volunteer program. The 
recommended timber harvesting practices that are highlighted in 
that Program for controlling soil erosion have been around in 
New Hampshire for, at least, 20 years. And implementation of 
these practices has been a critical component in reducing the 
impacts of logging on water quality over that time.
    As a State forester, I oppose the proposed rules on three 
major grounds.
    The first is: The proposal is a major departure from the 
historical interpretation and implementation of the Clean Water 
Act, and is not supported by statutory authority.
    The second is: The proposal ignores the relatively minor 
contribution made by forest management to water quality 
problems nationwide, and threatens to disrupt the effective 
approach taken by the State foresters and our Federal partners 
to achieve these results.
    And third: The proposal will be extraordinarily difficult 
to implement in practice and will result in drastically higher 
costs for both States that must develop TMDLs and the 
landowners and operators who might become subject to NPDES 
permitting requirements.
    I certainly understand that EPA has been working on 
addressing some of those concerns. However, until we see a new 
rule written and see the language of that rule, it would be 
very difficult to tell the degree to which concerns have 
actually been addressed.
    New Hampshire has a long and some proud tradition of 
protecting personal and property rights while working 
collaboratively to resolve public issues and problems. I have 
characterized this as a balanced and collective form of 
forestry leadership. The top-down approach promulgated by the 
EPA is viewed by many as a threat to maintaining that spirit of 
collaboration between the private and public sector that has 
worked so well here in New Hampshire to address natural 
resource challenges.
    As we work to address environmental protection and forest 
stewardship through constructive dialog, a broad spectrum of 
interests, from representatives of the forest products industry 
to those, who are some of the staunchest critics of that 
industry, have sat down and identified more than once the need 
for additional education, monitoring, and enforcement of 
existing laws.
    For example, the final report of the Forest Liquidation 
Study Committee to the State's Forest Advisory Board concluded 
that, with respect to improving forest practices, we need 
increased efforts to educate individuals about sound forest 
management, better data-gathering on the level and harvesting 
activity within the State, and enhanced enforcement of existing 
laws. What we really need are the resources to carry out these 
recommendations. Specifically, in our New Hampshire Statewide 
Forest Resources Plan, it's recommended that the State 
``Provide consistent, swift and equitable enforcement of 
forestry laws'' and that we secure funds for five additional 
Ranger positions.
    I recognize, as I stated before, that the EPA has been 
working to address some of the issues and our concerns around 
the proposed rules; and, I, again, would like to thank them for 
that effort. However, there remains a great deal of uncertainty 
as to the degree to which the EPA is addressing these concerns. 
Questions remain: And I'd like to go through these very 
quickly.
    --Do these rules lead to the improvement of water quality 
beyond the capability of existing State laws?
    --Is EPA considering forestry and silviculture as a 
nonpoint pollution source or not? This is a critical question. 
And I do not understand this, yet.
    --Under what specific circumstances will EPA issue a clean 
water permit or require the States to do so?
    --What is the relationship between the existing BMP's under 
the 319 Program and BMP's recognized under the new rule? If the 
319 BMP's are not acceptable, what are the new criteria?
    --Regardless of current policies or the intent of EPA, what 
is the actual impact on landowners and forestry activities if 
there is full enforcement of the proposed rules?
    To what extent will additional regulation drive landowners 
to convert land to non-forestry uses? We heard that a little 
earlier. And if the States have a lead, who has the final say 
with respect to the application of this rule?
    Now, I would like to emphasize that we really need to see a 
copy of the actual rule in order to understand the degree to 
which those questions are answered. We really need to see a 
copy of the language, as it will be presented in the rule; and 
I would suggest that the major policy changes that have been 
made, be presented for comment in the form of rule language.
    In closing here, while we do look forward to working with 
EPA to protect our water quality, we know what's important here 
in New Hampshire. We don't believe that the proposed rule is 
the correct approach. Even with the changes in policy, we are 
concerned that it creates ominous and uncertain Federal 
regulation over silviculture and forest management.
    Our collective efforts on behalf of the public to protect 
water quality should focus not on additional permitting and a 
shift to Federal control, but on monitoring, education, and 
additional support to the States to enforce existing law.
    Thank you for the opportunity to provide this testimony.
    [Applause.]
    Senator Smith. Thank you very much for your testimony, Mr. 
Bryce.
    I neglected to point out that this is a New England 
hearing. Mr. Poltak is here from Massachusetts and Mr. 
Lovaglio--have I got that right?
    Mr. Lovaglio. Yes.
    Senator Smith [continuing]. From Maine, Augusta, ME. Thank 
you very much, and I appreciate you both being here.
    Let me turn to you, Commissioner Lovaglio, for your 
comments from the Maine Department of Conservation.

STATEMENT OF RONALD B. LOVAGLIO, COMMISSIONER, MAINE DEPARTMENT 
                  OF CONSERVATION, AUGUSTA, ME

    Mr. Lovaglio. Thank you very much, Senator Smith, and 
distinguished guests. I am Ron Lovaglio, speaking on behalf of 
the State of Maine. I serve as Maine's commissioner of the 
Department of Conservation, but today, I am representing all of 
Maine's natural resource agencies, as well as, the 
administration of Governor King.
    In January of this year, Maine's commissioner of 
Environmental Protection and I submitted joint comments on 
EPA's proposed TMDL rules. At the same time, our State 
Forester, Thomas Doak, submitted comments, as did the 
commissioner of the Department of Agriculture. Our concerns 
were substantial and I call attention to those letters attached 
as part of this testimony.
    In the months since the end of the comment period in 
January, EPA has confusingly restated its position.
    In ``Achieving Cleaner Waters,'' that was released in 
March, EPA acknowledged that forests are essential to 
maintaining clean water. However, EPA provided no further 
insight into how costly TMDLs and the threat of permits would 
enhance State efforts.
    In their April 5 letter to Senator Shuster and the 
committee, the EPA regretted the confusion for the TMDL 
proposal and summarized the key elements of final regulation: 
To give States more time to develop lists of impaired waters; 
to give them more time to develop TMDLs; and they tried to 
clarify that permits will not be needed for forestry 
operations, which we heard here today, when these operations 
are managed by State programs ``that are proven effective.''
    Administrator Fox's April 5 letter is included and a list 
of ``Key Elements of the Expected Final Regulation.'' The EPA 
dropped the major components of their original proposal, 
including: threatened waters, offsets for new pollution, the 
public petition process, and the potential for Federal permits 
to be applied to forestry operations.
    However, the letter supplied few details about how the 
remaining program would address nonpoint sources.
    On May 1, a joint statement by EPA and the Department of 
Agriculture attempted to qualify the April letter; it states 
that no permits will be required for point source forestry 
operations for 5 years, and it specifies that EPA will develop 
guidelines for States to follow in designing BMP's. It then 
states that forestry operations would be exempt from permit 
requirements, and that the State's BMP's need to be recognized 
by EPA as ``adequate.''
    And at this time, also on May 1, it did not mention 
removing the public petition component that was mentioned in 
April. The letter also references increases in conservation 
funding, but identifies no new money to implement BMP's.
    This proposal, in our view, effectively leaves EPA with 
direct oversight over State efforts.
    Maine has little confidence that EPA's efforts to finalize 
a rule by the end of June that will result in a practical 
mechanism to apply the best analytic tools and the best 
remedies to the issue of clean water.
    Moreover, we are frankly, concerned about a seeming 
reluctance on EPA to recognize that State, rather than Federal 
approaches, particularly in the area of nonpoint pollution 
sources, have proven most successful in recent years.
    To suppose that States cannot develop BMP's without Federal 
guidelines and Federal judgment of adequacy is an overzealous 
and unnecessary application of Federal power.
    I'd like to speak specifically to forestry, as well as, 
agriculture.
    Silviculture has not been identified as a major source of 
impairment in Maine's 303(d) list. The EPA's own review of that 
list described Maine's nonpoint source pollution program as 
``exemplary and one of the best in the Nation.''
    It is not appropriate to now require States to submit to a 
one-size-fits-all federally defined, determined to be 
``adequate'' BMP's.
    Maine has a strong Forest Practices Act that includes 
criteria for sustainable water quality.
    In unorganized towns, which cover 10 million of our acres, 
we have land use regulations, whose primary function has been 
to drastically improve water quality over the last 20 years, 
principally, from forestry operations. It is a national success 
story accomplished by the State without Federal intervention.
    The gap EPA proposes to close by continuing to include 
forestry operations, I believe, is largely theoretical. 
Evaluating threatened or impaired water on the basis of 
evaluated opinion, rather than data, is akin to being convicted 
before the evidence is presented.
    In nonpoint source issues, without real data, it is 
difficult to pinpoint which sources are contributing what; 
consequently, it then becomes guilt by association.
    Requiring a major safety margin on top of that evaluative 
opinion adds insult to injury--a real cost to forest landowners 
and farmers.
    So, what needs to be done?
    States should develop BMP's without Federal ``guidelines'' 
for approval. There should be----
    [Applause.]
    Mr. Lovaglio [continuing]. There should be real Federal 
funding assistance; help people without dictating. And we 
should develop real data on loads. Support pilot programs to 
find different approaches that work, as opposed to one-size-
fits-all.
    In our view in Maine, Senate bill 2417, your bill, Senator 
Smith, is a much preferred alternative. The bill recognizes 
that the most effective way to improve water quality and reduce 
nonpoint pollution is to increase funding to State programs 
that reach landowners directly, and improve practices on the 
ground. The bill supports innovative State approaches that 
build on watershed management efforts. And finally, the bill 
provides critical money to develop water-quality data and to 
develop a better understanding of how and where TMDLs can be a 
useful tool; and, in fact, where they cannot.
    On behalf of Maine, thank you very much and we appreciate 
having the opportunity to comment on this panel today. Thank 
you.
    [Applause.]
    Senator Smith. And we're delighted to have you. I've been 
fishing up around Moosehead Lake. There are some paper 
companies up there and it was a pleasant experience. I didn't 
catch any fish, but I saw a lot of moose.
    Mr. Poltak, Ronald Poltak, executive director of the 
Northeastern Interstate Water Pollution Control Commission from 
Lowell, MA. Welcome, sir.

STATEMENT OF RONALD F. POLTAK, EXECUTIVE DIRECTOR, NEW ENGLAND 
         INTERSTATE WATER POLLUTION CONTROL COMMISSION

    Mr. Poltak. Thank you, Senator.
    Senator Smith. You had a long ride; longer than mine.
    Mr. Poltak. Quite a long ride. I want to thank you for the 
opportunity to be here and I want to thank your staff for 
inviting me to testify. My name is Ronald Poltak and I am the 
chairman and director, actually, executive director, of the New 
England Interstate Water Pollution Control Commission. It is an 
agency that was established by an Act of Congress in 1947 to 
work with the six New England States and New York, charged with 
the responsibility to coordinate water pollution control 
programs.
    And, with that said, I appear before you this afternoon as 
a lifelong resident of the State of New Hampshire, born and 
brought up in this State. I'm very proud to have worked in the 
State Government for 20 years prior to have taken on this 
position.
    I appear before you this afternoon with full recognition of 
the fact that the six New England States and New York have--and 
I won't go into the details--have submitted very formal written 
comments relative to the content of the regulations as 
proposed, and we do have difficulty with many of the provisions 
within the content of those regulations.
    However, we do support the intent of the TMDL process with 
respect to what it means in terms of enhancing water quality 
across the Nation. Those comments are submitted for the record. 
They are available and I also appreciate the efforts of Chuck 
Fox and, more importantly, to some degree, his staff, who have 
worked with us in earnest at the State level to try to correct 
some of the difficulties we've had, in terms of the direction 
this program will head in.
    I expect that many of the changes will be implemented, and 
I expect many of those changes will result in positives 
relative to the TMDL process which is essential to ensure water 
quality across the width and breadth of the Nation.
    I also speak on behalf of other interstate commissions. 
There are six others like ours in this country. We work with 
the States, as I said earlier, and we have a very important 
role to play, in terms of the implementation of the Clean Water 
Act. I want to just elaborate a little bit on what that role is 
and how important it is, Senator, that you and the committee 
understand and recognize the interstate role and the interstate 
objectives.
    We have been charged with the responsibility through an Act 
of Congress on monitoring and assessing water quality within 
our areas of jurisdiction. We have established over time a 
uniform or consistent set of uses and criteria to protect our 
public waters. We have established wastewater control 
requirements. We review and approve projects. We also develop, 
along with other States, 305(b) water quality assessment 
reports, which are essential to the basis on which section 106 
funding is derived; also to explain where water impairments 
across the country are located.
    In accomplishing these roles, it should be noted that the 
interstate commissions are well established and have developed 
strong working relationships and trust among Federal, State, 
and local entities.
    Our Commission was established, as I said, over 54 years 
ago, and our role is to provide consistency and equity among 
two or more States, and in some basins between EPA regions and 
the States. We can establish a process to define appropriate 
goals and program elements of TMDL development processes. We 
develop and adopt water quality standards. The first water 
quality standards adopted across New England, in terms of 
consistency, along with the States of New York, New Jersey, and 
Pennsylvania, were developed by our Interstate group, and we're 
proud to say that those standards are still in place, and we 
are there to provide consistency and assurances to the public 
that those water quality standards will not be violated.
    We have worked and continue to work with the States and 
dischargers in implementing the TMDL program.
    In our view, on waters having interstate basin commissions, 
EPA should recognize and will, I would assume, work through the 
interstate commissions in the establishment of TMDLs. There's a 
very important reason for that. It is because the commissions 
can help secure agreement on management approaches and maintain 
consistency across State lines. We are, as commissions, made of 
State members, and we also have the Federal Government through 
EPA at our table on our executive committees.
    We have a strong working relationship and trust, and 
operational plans that matured over time. We have the ability 
to implement TMDL activity among the 25 river basins that come 
under our jurisdiction in New England, not the least of which 
are the Connecticut and the Merrimack, and we've already begun 
coordinated efforts to make TMDLs happen.
    I just want to take 2 more minutes to talk about two more 
subjects. In terms of the regulations themselves, the subject 
of flexibility must be discussed.
    In order for the TMDL program to be effective, flexibility 
and consistency with existing statutory authority is critical 
and must be provided in the final TMDL regulations. The final 
rulemaking needs to adequately reflect the partnership 
established with the States under the 1972 Clean Water Act. It 
is important to note that the Federal Water Pollution Control 
Act, section 101(b) gave States ``the primary responsibility 
and rights to prevent, eliminate, and reduce pollution.''
    These presently proposed regulations do not reflect this 
leadership role for States outlined by Congress. State and 
interstate organizations must be afforded greater flexibility 
and resources to support their important role in implementing 
this critical program.
    If the TMDL program, in fact, utilizes a watershed approach 
to reduce pollution, and we know that it intends to, then State 
and interstate organizations need to have the primary role and 
responsibility in implementing this program. Since these 
entities are better suited to that role than the Federal 
Government, it is critical that sufficiently flexible 
provisions be granted to States and interstate organizations in 
order to account for and address local site-specific factors 
which deviate from the national perspective and the one-size-
fits-all phrase.
    With respect to current funding, Harry elaborated on that. 
On a national basis, I just concluded working with EPA 
Headquarters on a gap analysis study within the context of 
program implementation capability. That gap analysis study, 
which will be shared publicly in the near future has 
demonstrated that, in fact, on the whole, States and 
interstates on an annual basis are $26.5 million short on an 
individual basis of implementing all of the program objectives 
that are subjected to them through the Clean Water Act process.
    If we're going to be able to make strides to narrow that 
gap, it's going to take substantial funds. While the current 
level of funding will be very much appreciated, in the sense of 
the additional $45 million in the 106 program, in my opinion, 
funding is still woefully inadequate in order to get the job 
done, it should be a threefold increase in funding in order to 
make the right things happen.
    Additionally, I would simply mention the fact that there 
is, within the context of the Administration's proposal, 60 
cents of every Federal dollar to be matched with 40 cents of 
State and interstate money. We simply can't make that match. 
This is a mandated program, and a match of that size is of an 
amount that is excessive, in our estimation, and that should be 
no more than 10 percent of it; or, better still, given the 
level of record matches presently under the 106 program, it 
should simply be maintained at that. I think that is a thought 
for consideration; but simply stated: ``The match is too high 
for us to make the program work.''
    With that said, I thank the committee. My bottom line is: 
Don't forget the benefits of the interstate basin commissions, 
and I appreciate the opportunity to talk with you all today. 
Thank you.
    [Applause.]
    Senator Smith. Thank you very much, Mr. Poltak. I also 
wanted to congratulate your City of Lowell for its 
participation in the Merrimack River Basin Study. We have 
several mayors now, both in Massachusetts and New Hampshire, 
looking at the holistic approach to managing the water quality 
of that river. You know, it's great to have all of them on the 
same level, two different parties, different philosophical, 
political views; however, all united on the holistic approach 
to the use of the Merrimack River study. It was great, and we 
appreciate your support there.
    Let me just remind you that the same rules as the previous 
panel, if someone has a question, feel free to step up to the 
mike and ask any one of the panelists. I'll start with a couple 
of questions, in the event that you want to take some time to 
think of a question.
    Mr. Stewart I was interested when you use the term ``re-
propose the rule.'' Could you elaborate on what you would 
expect in re-proposing the rule?
    Mr. Stewart. We were thinking in the New Hampshire context 
and how we would work on rulemaking, and I know that Chuck has 
his own rules, and so forth, on how he has to do things.
    But in the New Hampshire context, if we had the magnitude 
of comment and very significant changes to the rule, we would 
likely go out with another public process for review, receive 
comment again, and then promulgate the final rule.
    Senator Smith. How long would you want?
    Mr. Stewart. It could be a couple of months in New 
Hampshire. Now, he's dealing with the national rules; so, I 
don't want to make any assumptions as to what that would take 
on the national level, and he has his own deadlines.
    Senator Smith. Under the rule as proposed, do you have any 
idea what it would cost the State of New Hampshire? Mr. Poltak 
brought up a very good point about the Federal/State split in 
the mandate. What would that cost the State of New Hampshire if 
it was to be implemented, as is?
    Mr. Stewart. I have an estimate of the DES costs, but 
that's really under the existing rule or the new rule; and, 
again, I would estimate that $420,000 to $430,000 is really the 
cost for an adequate TMDL program, in terms of our ability to 
start the program, to do the studies, and perform a necessary 
water quality analysis. I don't have a handle on the regulated 
community costs.
    Senator Smith. Mr. Bryce, you mentioned that the rule would 
be hard to implement in practice. Walk us through what would 
happen?
    What obstacle would a landowner or a forester in the 
scenario we have here have to address to deal with this role.
    Mr. Bryce. I'm not sure that I completely understand that 
myself right now.
    With respect to bad actors, I would say, as stated in my 
comments to the EPA, I'd say, that bad actors won't even bother 
filing for the permit. They don't comply with the law. That's 
why they're bad actors.
    Issues with respect to permitting the landowners, include 
making sure that they are able to do it correctly in time. Time 
is a big issue when you're looking for a permit, because you 
don't always know 2 months, 3 months, 6 months, a year in 
advance, exactly what you're plans are going to be. So, when it 
comes to permitting for forestry activities, the shorter the 
time period that's involved, the less burdensome it is on the 
landowner.
    Senator Smith. Let me just go back to Mr. Stewart for a 
moment. In terms of budgeting, wouldn't it be beneficial to 
know the costs in a little more detail on the proposed rule 
before you were asked to adhere to it or asked to follow the 
Federal rule?
    Mr. Stewart. Yes, I understand what Mr. Fox is suggesting 
is his estimates of the costs and I don't know what the 
timeframe for that is, but I understand that there are 
adjustments being made in terms of the total fiscal impact of 
the rule.
    With regard to the permitting elements, the way I see this 
is that the reality, because we're talking about impaired 
waters here, and identifying an operation that has impaired 
water, and then it qualifies and comes under the NPDES permit. 
In New Hampshire, I believe, that before we go to that point, 
that Phil's operation--the Forest Division and the DSY 
Division--would be the only fact particular operation, first 
with technical support and then reinforcement necessary long 
before the NPDES permit program kicked in.
    Senator Smith. Let me ask for a brief comment from each of 
you--you all deal with water quality one way or another in your 
current position.
    Would an 18-month delay, in your view, do any damage to the 
environment? I'll start with you, Mr. Poltak. Would an 18-month 
delay for science cause any damage to the environment. It's 
tough to quantify that, but, in your professional----
    Mr. Poltak. I would respond this way: What is proposed, as 
Chuck said earlier, are revisions consistent with the existing 
rule and this rule will remain in place, the programs would 
remain in place, the efforts of the States and Federal 
Governments, to the extent that we've observed today, would 
stay in place; the opportunity to move forward, in terms of the 
importance of the TMDLs, and in light of the various court 
orders and decisions that have been handed down across the 
country, could be impacted relatively, in terms of our need to 
move forward.
    My suggestion, and it's only a suggestion, and we are going 
to take it up soon, the six New England States and New York, 
when we meet a week from Monday, is that in the spirit of 
compromise a second review of the revised rules is in order 
prior to enactment. Chuck, as I said earlier, has been 
accommodating to state comments in order to make this rule a 
more palatable one from the prospective of implementation.
    I think, on the other end of the spectrum, with respect to 
your legislation, which we're also going to be taking up in 
depth next Monday. We will be commenting on formally regarding 
provisions which we do support. Getting back to the issue of 
the question you asked, I believe, there's some middle ground 
that could be struck if we, as States and interstates, had the 
opportunity--and I suggested this to Chuck earlier--to see the 
actual language shared with the public and be able to have 
assurances that all of our comments and the majority of the 
sense have been responded to. I believe they may well have. 
There is the opportunity to put this initiative into effect 
prior to 18 months, but that remains to be seen. I do not see 
the waters of the country, if you will, being significantly 
deteriorated if there were to be a delay.
    Senator Smith. Mr. Lovaglio, same question?
    Mr. Lovaglio. Well, first, to quickly answer the question, 
when I look at the great success we've had in Maine, including 
the levels of praise from EPA, a delay of that level would have 
absolutely no affect on water quality. We're already doing what 
needs to be done.
    I think the logical question is: Why are we even 
considering this? This whole change appears to me to be a 
solution in search of the problem.
    [Applause.]
    Mr. Lovaglio. I don't think we should be arguing the delay. 
I think we should be arguing whether we go forward with this at 
all.
    Senator Smith. Do either of you other gentlemen wish to 
comment, or is it pretty well clarified? Do you wish to make a 
comment to that question?
    Mr. Bryce. I stated that if you want to work on protecting 
water quality, it should be in other areas, and I made some 
suggestions in my testimony of monitoring, consistent 
enforcement, and education.
    Mr. Stewart. From the prospective of the State programs, I 
really see this rule in two pieces: One is the silviculture 
and--and the agricultural funding, and it really doesn't matter 
much, to be honest.
    From a prospective of the State programs, as Ron indicated, 
there are some benefits, in terms of moving forward. The 18 
months involvement, you know, it's kind of an incremental risk, 
because what we've seen across the country is a bunch of 
lawsuits related to the TMDL program. We have been fortunate in 
New Hampshire not to have one of those, and so there's this 
incremental risk that could be incurred, if you will, as the 
program component of the rule is delayed.
    Senator Smith. Thank you very much. Yes, sir?
    Mr. Poltak. Just in closing, I just wanted to make sure 
that there was clarity. The judicial branch of Government has 
mandated that we must move forward as States and in response to 
public needs, in terms of what we do with regard to managing 
TMDLs.
    And with that said, I think our job is to have a total 
understanding and appreciation of the effort and where this 
program is going to head with respect to these revisions; but 
relative to its impact on water quality, there's no doubt that 
the impact on water quality will be positive.
    Relative to your question earlier, we developed a TMDL on 
the Long Island Sound estuary. The cost of developing that 
TMDL, yet to be implemented, is in excess of $3 million, alone.
    On the other hand, we can develop a TMDL for a local stream 
segment, a part of a watershed, for as little as $50,000. We 
have put together a national assessment of the costs associated 
with developing TMDL for a specific purpose, and we'd be glad 
to share that with the committee.
    We've had long discussions with EPA relative to our 
differences of opinion between EPA and the States and 
interstates relative to what they see the cost to be. There is 
a disparity there. Chuck and the States recognize that; but it 
has been well defined, and it can be answered in detail for 
you.
    Senator Smith. Thank you very much.
    I'm going to take these three gentlemen's questions and 
then we'll move on to Panel 3. Go ahead, sir.
    Mr. Mitchell. I'm Steve Mitchell from Vermont. Is it all 
right to speak here?
    [Laughter.]
    Senator Smith. Yes.
    Mr. Mitchell. I've been a logger here for 50 years, and I 
don't know if these gentlemen have ever been in the logging 
business. I've taken programs, the State of Vermont has got the 
40-acre clear-cut deal; I've been to classes; I've logged for 
50 years. I started with a horse and a bucksaw, and I've worked 
my way to skidders, and stuff.
    We have all of these laws on the books for revenue. Just to 
give you gentlemen an idea of what it cost--a lot of times, 
putting a culvert in for a brook is 500 bucks, easy. That's 
just the one cost. But what, to me, a lot of you people in 
Washington are not realizing, I'm an independent logger. I 
don't work under a forester, but I still have to go by the best 
forest management practices.
    What is going to happen, not just to me, but to thousands 
of us loggers across the Nation, if I have to wait a year for a 
permit?
    I'll tell you how I log. Right now, I've got probably seven 
more loads of wood to cut on one particular landowner's land. 
I've logged it since 1976. This is the 50th time I've been back 
through there. The loggers are doing a hell of a job; but the 
point is, what if I had to get a permit? Tomorrow, I don't have 
a job after I get this done. I'll go out and hunt for a 
woodlot, and I drive to Massachusetts to get people to visit 
with them. This is the problem.
    I believe in clean water. I do everything I can. I clean 
the brush all out, and all that. But for me, if this is 
implemented, this isn't just going to affect just the logger. 
It's going to affect machinery operators--the Caterpillar, John 
Deere, all of the people. It's going to affect the building 
industry; because, with these regulations that we are getting 
today--if you only go look around--go to Berlin, the paper 
mill, how much wood do they have in their yard? Not very much. 
Go to Davison's in Littleton, NH. They're down to 1 day sawing. 
They saw about 200,000 feet of logs a day. These industries are 
going to suffer. The Nation will suffer. We don't need this 
rule.
    I can understand furthering the loggers' education. I've 
got no problem with that. I go to classes. I don't like it, but 
I go, anyway.
    Think about something. You want to propose a $27,000. Think 
about it, $27,000--would you pay $27,000 for a small violation?
    Mr. Fox. No.
    Mr. Mitchell. OK. All right, if you took that, the 
landowner can't--most of them couldn't. OK, that's enough to 
stop the landowner from wanting to do any logging.
    What's it going to do to the farmers? He can hardly spread 
his manure on his own place. You're going to fine him $27,000, 
too?
    Senator Smith. Do you have a question for the panel?
    Mr. Mitchell. OK, the question to Mr. Fox is: Do we need 
this regulation?
    [Applause.]
    Senator Smith. Maybe, at the end, if Mr. Fox wishes, he'll 
respond to your point.
    Yes, sir?
    Mr. Bogeu. My name is Doug Bogeu, and I'm the 
representative of Clean Water Action from the southern part of 
the State. I traveled a long way to be here, as well. And I'm 
very concerned just on the last point that there hasn't been 
much discussion of the benefits of dealing with the problem of 
water pollution and the need to address this problem, both in-
state and nationally. But I will make more comments further in 
the comment section. Right now, I just have a couple questions. 
One, really, for Mr. Stewart.
    Can you tell us--I don't know if you have a copy of the 
list of impaired waters with you today. Can you tell us how 
many impaired waters there are on the current list for the 
State of New Hampshire? How many are in the north country in 
New Hampshire right now?
    Mr. Stewart. I don't have that list with me. I believe that 
four or five reach across the State. I don't believe there's 
any in the north country. I haven't looked at the list in a 
good while; so, I'm hedging. So, yes, I guess that's the best I 
can do off the top of my head.
    Mr. Bogeu. OK, thank you.
    I looked at a report that DES sends to Congress every 2 
years. I only have the 1996 report; but in that report, they 
listed 70\1/2\ miles of rivers that were considered impaired 
under the Clean Water Act. And then when you look at the list 
of how many were due to silviculture and to agriculture, 
silviculture was zero. OK? And I'm sure, I think everybody's 
pretty much pointed that out, that silviculture is not known to 
cause any of the water problems at this point.
    [Applause.]
    Mr. Bogeu. And with agriculture, as well, there was a total 
of 5.5 miles. That's 8 percent of the rivers. Now, this is 
enough to argue that we don't need the rules. It is enough to 
argue that people shouldn't be so concerned about the impact on 
their operations here in New Hampshire.
    Isn't it right? I know this has been said before, but we 
seem to have to keep making the point. Isn't it right that 
there has to be an impaired water designation before any 
permits can be required of any landowner, or any timber 
operation, or any agricultural operation in the State under 
these proposed rules?
    Mr. Stewart. That's correct. I would reinforce that whether 
these rules exist or don't exist, the reality is that if 
there's an impaired water caused by a silvicultural operation, 
and the State Division of Forest or the Department of 
Environmental Services becomes aware of it, it will be 
addressed. By technical support, education, and then, 
ultimately, enforcement to get compliance, if necessary. So, 
yes.
    Mr. Bogeu. Well, based----
    [Applause.]
    Mr. Bogeu [continuing]. Based on what you know of the 
current practices in the north country throughout the State, do 
you think that there is likely to be any impaired waters 
designated in this region or any permits required of anybody in 
the region because of that problem?
    Mr. Stewart. I don't believe that this NPDES element is 
going to kick in in New Hampshire if the rule existed, no.
    Mr. Bryce. And the question then becomes: What is the 
reason why we would need the rule; and what helps does bringing 
anything else along with it? This gets back to my questions 
about some of the new policy changes. What do they really mean 
to the landowner? I don't believe I understand that.
    We see no reason for the rule. We see that we don't need to 
have that hanging out there. It doesn't help us protect water 
quality.
    Mr. Bogeu. Well, if you're asking the question to me, and 
not just rhetorically, we do need more effort on clean water. I 
live downstream. OK? I know it's probably not as big a problem 
up in the north country, but we have quite a few impaired 
waters down in the southern part of the State, and we're 
finding more and more pressure to use other water supplies. 
People are tapping into the Merrimack River for drinking water, 
and we need to ensure that the quality of those waters, so----
    [Inaudible comment from the back of the auditorium.]
    Mr. Bogeu. I think, though, there really hasn't been enough 
discussion of the benefits of the TMDL rule, in general, and I 
think this hearing has been somewhat one-sided. I just have one 
other question. This is, I think, to someone involved, either 
Mr. Bryce or Mr. Lovaglio--to the timber industry.
    Now, it's my understanding that the forestry industries 
have been exempted in a regulatory way, not written into the 
Clean Water Act; but for the last 28 years, since the Act was 
written, the forestry industry has not been a subject to Clean 
Water regulations.
    And I would like to ask you if any one on the panel can 
explain to us why you think that exemption should be continued 
indefinitely. It is being discussed to not try to move forward 
with these rules.
    Mr. Lovaglio. Well, I can only speak for Maine, but I have 
a strong suspicion, it's equally the same in New Hampshire. We 
have strong water quality rules and regulations in place that 
are well informed and have proven effective; have received 
compliments of the EPA. And so, I think that we have something 
that's working, and we just have no need to start developing 
new rules. We have, basically, a state-level, statewide 
approach to water quality that's working.
    So, I don't find a need to be considering what the Feds 
believe are adequate BMP's, and trying to bring in a new 
regulatory mind frame into an infrastructure that already 
exists within the State that is doing an outstanding job on 
water quality.
    [Applause.]
    Mr. Bogeu. So, if I could make just a final comment, I 
really feel that we should be thinking of the issue on the 
national level. I agree that there probably aren't great 
problems in New England and, certainly, not in the north 
country area in this regard, but there are many in other parts 
of the country. I mean, people have died from runoff from 
floods, from clear-cutting out West, and we shouldn't be trying 
to dictate in how they deal with problems out there, just as we 
don't want them to dictate how we deal with the situation here 
in New Hampshire. So, you know, we really need to be thinking 
more on those lines, rather than just how does it affect us 
here. Thank you.
    Senator Smith. While the last gentleman comes up, let me 
just say, in balance, as the chairman of the committee, I hear 
your comment and I respect your views, but I've made a very 
determinate effort to be as balanced as possible on this. 
Indeed, Deputy Administrator of EPA has a different position 
and most of the people have in this room, I thought, testified 
very forcefully on his position. He was a single panelist; so, 
he had the opportunity to do that with no interruption.
    In addition, there will be two additional panels who will 
come on and there will be individuals on those panels, who, 
perhaps, have a different position; and, fine. We have anyone 
of the audience who--allow the microphone pretty much to be 
open to anyone like yourself who has different views. We are 
trying to keep it as balanced as possible, but I understand 
your point.
    Yes, sir.
    Mr. LeBrie. I am Cliff LeBrie and I'm a forester in the New 
Boston, New Hampshire area and have been for 45 years. And I'm 
in agreement with the fellow with the pad; and after hearing 
what they had to say, the question arises: Why do we need EPA?
    [Applause.]
    Mr. LeBrie. And you, Senator, have you had an answer to the 
question you asked at the very beginning when you opened the 
panel in regards to EPA's input?
    It doesn't do any good to get into calling them bad names, 
and what not; but, traditionally and historically, their 
mandates have imposed great hardships on the average landowners 
throughout the country. And I'm skeptical when they make a 
power play to enter into any other activity that affects the 
individual landowners in the State. Thank you.
    [Applause.]
    Senator Smith. Thank you. Thank you very much, sir. And 
unless anyone--anyone have a comment on the panel? If not, let 
me say thank you to the four panelists who have been here, 
especially, those who came from Maine and Massachusetts, quite 
a ways away. Although, some of us came from New Hampshire 
almost as far I guess when you go south to north.
    At this point, I call up the third panel, but before we do, 
we'll take a 5-minute recess.
    [Recess.]
    Senator Smith. The hearing will come to order. We have two 
more panels; and then at the end, as I indicated, we'll have a 
few minutes at the end if anyone wishes to make a statement or 
ask a question of any of the panelists who might still be here 
at the end of the session.
    I'd like to introduce Mr. John Hodsdon, director of New 
Hampshire National Association of Conservation Districts from 
Meredith; Mr. Eric Kingsley, executive director of New 
Hampshire Timberland Owners Association; Mr. Charles Niebling, 
policy director for the Society for the Protection of New 
Hampshire Forests; and Mr. Joel Swanton, manager of Forest 
Policy of Champion International in Bucksport, ME. Welcome to 
all of you, gentlemen. Glad to have you here, appreciate your 
time, and your testimony; and why don't I just start with you, 
Mr. Hodsdon, and move right down the table.
    Please proceed, Mr. Hodsdon.

  STATEMENT OF JOHN HODSDON, DIRECTOR, NEW HAMPSHIRE NATIONAL 
      ASSOCIATION OF CONSERVATION DISTRICTS, MEREDITH, NH

    Mr. Hodsdon. Thank you. I'm John Hodsdon. I'm here as one 
of the directors of the National Association of Conservation 
Districts, NACD; but I'd like to let it be known that I'm a 
vegetable farmer in Meredith, down in the Lakes Region, and 
some of these other things are volunteer jobs I get into. You 
have my testimony from NACD's position on TMDLs. Also, a letter 
that I sent in as the chairman of the Water Committee of the 
New Hampshire Association of Conservation Districts for comment 
back in January on the TMDL process, and I'm also one of the 
volunteer supervisors on the Belnap County Conservation 
District.
    I would like to thank Senator Smith and his committee for 
this opportunity for Conservation Districts to reaffirm their 
support for clean water, and also to express some our concerns 
with the proposed TMDL process. Good to have you back in New 
Hampshire.
    Senator Smith. Thank you.
    Mr. Hodsdon. Some of you may not be familiar with 
Conservation Districts. There are roughly 3,000 nationwide, led 
by some 16,000 volunteer supervisors or leaders, volunteer 
boards; and, incidentally, there are 10 districts in New 
Hampshire organized along county lines.
    We are involved in protecting and enhancing water quality, 
as well as, especially, soil quality. We were at one point 
known as the Soil Conservation Districts, and then Soil and 
Water Conservation Districts, and then just Conservation 
Districts.
    We work with landowners on a voluntary basis, helping them 
protect their natural resource concerns. And this we do for 
landowners, it started out 60 years ago, primarily, working for 
the agricultural community; and then quickly, the forestry, as 
well. A lot of our work now is also with the communities, the 
planning boards, and other land use agencies to help provide 
advice, again, strictly on a volunteer basis. We're 
nonregulatory.
    I would like to mention our partners, especially the 
Natural Resources Conservation Service, formerly known as the 
Soil Conservation Service, as you may remember. They are 
invaluable assistance. They provide the technical advice, 
conservation, and technical assistance that is indispensable 
for getting sound conservation out there on the land and 
protecting our natural resources.
    I would also like to mention that there's been an attrition 
in the number of personnel they have to help us, even as we had 
more to do over the past 20 years, with level funding or worse. 
The NRCS personnel in New Hampshire is now just about half of 
what it was 20 years ago. And if we could get more funding into 
319 and other such programs, which is what we need to increase 
the rate of progress. We also need more funds in the 
conservation technical assistance line item of NRCS's budget, 
so that there'll be somebody there to do the job with us.
    We found that a voluntary incentive-based approach has been 
very effective in reducing polluted runoff, sediments, 
nutrients, erosion. Farmers are more than willing to cooperate.
    As a matter of fact, if we look at last year, farmers' 
requests for cost-share assistance in one program, the 
Environmental Quality Incentive Program, which we used to help 
in the funding of various conservation practices, in New 
Hampshire, in the middle of the year, was about $2.2 million. I 
think it went a little higher than that. The total money 
available was just a little over $400,000. About a 5 to 1 
difference there. And that much more that could have been done 
if money was available and the farmers were willing, but some 
of these things are very expensive, particularly, in the manure 
management. The manure storage structures, with some of the 
newer, more modern standards that are required for a stream-
bank erosion, go beyond the financial ability of the farmer.
    And remember, there's a big public input into this, a 
public benefit from having these done, as well.
    Basically, the program has been effective the way we've 
been doing it, and we can make more progress if we had more 
money going into the conservation/technical assistance, into 
the EQIP funding, into the 319 to help out those EPA-funded 
programs.
    And also, I would like to bring up another one, 208(j), 
which has been, more or less, dormant for quite sometime. I 
believe it would be worthwhile to put some funding through that 
process and that would get it much more directly to the farmers 
or foresters that need it than necessarily spending so much of 
it in the State bureaucracy. I'm sorry, Harry.
    Mr. Stewart. [Inaudible comment from the audience.]
    Mr. Hodsdon. These regulations, which came out last August 
23, as I read them, for TMDLs, are very prescriptive. The one-
size-fits-all approach, I would say, is inefficient and will be 
expensive.
     It is quite clear that Congress did not intend TMDLs to be 
used to regulate nonpoint source pollution; plus the fact that 
this regulatory approach will not be as effective as a 
voluntary incentive approach for the vast majority of what we 
are facing.
    Therefore, EPA should not try to use the TMDL program to 
regulate nonpoint source pollution; also, that it should not 
direct the States to do it.
    Chuck Fox said, essentially, that they're not doing that, 
so the regulation should not call for using TMDLs for nonpoint 
source pollution.
    There's another concern I have concerning the tendency to 
try to convert what we now call nonpoint sources to point 
sources. I know the dairy industry in this State is worried 
about that. Cows would become a pollution source by calling 
them a point source. If EPA decides they wanted to do that, it 
would not be good.
    Now, another concern I would like to throw out at this 
point is we talked about the margin of safety in the TMDL 
regulations, and it is not at all clear what you mean by this. 
I took a guess at it, and I may be wrong. I think possibly that 
you may mean that when our level of understanding, in other 
words, our ignorance, about what the actual situation is, how 
bad it is, in a watershed, or what would it take to reduce the 
pollution that the standards should be much stricter?
    Now, in a traditional margin of safety question, when we 
were, say, introducing something new into the environment that 
hadn't been there before and we really weren't sure just what 
the effects were going to be, we'd want to be more cautious, 
and that is appropriate. But you're trying to use that kind of 
reasoning to justify stricter standards. I think it is not what 
should be done. There's no scientific reason to use stricter 
standards for effluent limitations.
    OK, I think I've used up my time and then some. I'll take 
questions later.
    Senator Smith. That's all right. Thank you very much, Mr. 
Hodsdon.
    Mr. Kingsley.

 STATEMENT OF ERIC KINGSLEY, EXECUTIVE DIRECTOR, NEW HAMPSHIRE 
                 TIMBERLAND OWNERS ASSOCIATION

    Mr. Kingsley. Thank you, Senator, and I certainly 
appreciate the opportunity to discuss the EPA's proposed TMDL 
rules with you. And I also want to thank the couple hundred or 
so people who took one of the first nice Saturdays in the 
spring to join us.
    As the executive director of the New Hampshire Timberland 
Owners Association, I have the honor of representing over 1,500 
landowners, loggers, foresters, and wood-using industries in 
this State. Our members own and responsibly manage well over a 
million acres of productive forestland. The forest industry in 
this State contributes, roughly, $4 billion, or 11 percent of 
the State's gross product to our economy annually. We're the 
second most heavily forested State in the Nation, and we're 
covered with mixed hardwood, white pine, and spruce-fir 
forests. Very, importantly, and different from other--4 out of 
every 5 acres of our land is in the hands of private 
landowners.
    New Hampshire's commercial forestry has long contributed to 
the State's efforts to protect water quality, and we make every 
effort to assure that our activities do not unnecessarily 
contribute to impairments of streams, rivers, lakes. I think 
you've heard this throughout the day.
    In recent years, efforts on the part of landowners, 
loggers, foresters, and forest industries have significantly 
increased awareness of steps that can be taken to improve water 
quality during a forestry operation. This list is far, far from 
comprehensive, but I want to share with you some of those 
things: The Tree Farm Program is part of a national program; 
and it recognizes private landowners for making good 
stewardship. We have over 1,650 tree farmers managing a little 
over a million acres here in New Hampshire. I'd point out that 
the White Mountains Regional High School is a registered tree 
farm.
    The Professional Loggers Program, which has been mentioned 
before, is a joint effort of our organization, as well as, the 
University of New Hampshire and the Cooperative Extension. This 
provides training and professional development opportunities 
through the State's logging community; and one of the areas it 
focuses upon is Best Management Practices.
    We conduct landowner workshops in cooperation with the 
National Resource Conservation Service to help landowners and 
municipal officials understand the opportunities to protect 
water quality during timber harvesting operations, and we 
participate in the Sustainable Forestry Initiative, which is 
part of the national program sponsored by the American Forest 
and Paper Association.
    New Hampshire's forestry community has made a commitment to 
water quality. These programs demonstrate that commitment. 
Unfortunately, what we're seeing from EPA's strict new rules 
may undermine these efforts.
    As part of the rules proposed last August, EPA may 
reclassify some forestry activities from nonpoint source 
activities to point source activities, placing forestry under 
an entirely new regulatory regime. The EPA proposal has the 
potential to treat forestry activities, including those that 
contribute significantly to wildlife habitat, under the same 
regulatory regime as factory discharge.
    New Hampshire's private landowners, who have a long history 
of contributing to the State's water quality, are threatened by 
this bureaucratic, top-down proposal, and understandably so. 
It's very difficult to understand the benefits that this would 
bring to New Hampshire, but it's easier to grasp the downside.
    One of the problems that comes out of the EPA proposal is 
that it is made in isolation without connecting to the larger 
environmental and economic system. New Hampshire is a rapidly 
developing State; and it's been mentioned before, the 
landowner's 
constantly under pressure to convert forestland to other uses. 
We permanently lose, roughly, 20,000 acres of working land each 
year to development. Managing forestland for economic return is 
a very, very marginal business, and requires a long-term 
commitment on the part of the landowner. Actual imposed costs 
or landowner expectations of future costs will be capitalized 
into land values. This reduction of forest land values relative 
to other land uses--typically, development--will increase the 
pressure to convert to land to these other uses. The EPA's 
proposal fails to recognize that, given the choice between 
bureaucratic red tape and development, many landowners may be 
forced to develop their land. This is particularly true of 
small, nonindustrial landowners, upon which this proposed 
regulation would fall quite heavily. Nonindustrial private 
forest landowners, many of them who harvest infrequently have 
responsibly managed their holdings for generations, own almost 
70 percent of our State's farmland and forestland. Many of 
these landowners, it's estimated by the USDA's recent survey, 
to be roughly 84,000 in New Hampshire alone, do not have the 
technical expertise necessary to comply with the complicated 
Federal requirements. While the impacts of the EPA's proposed 
TMDL regulation is of enormous concern for our entire industry, 
we believe that it would hit these landowners first and 
hardest.
    I urge you to use your influence as Chairman to help the 
EPA recognize the positive, proactive steps that the forest 
industry and forest landowners have taken to protect water 
quality. Instead of pursuing their Washington-based approach, 
EPA would accomplish far more by working with citizens and 
industry to support and expand upon existing activities to 
protect water quality. By encouraging collaborative approaches, 
rather than the confrontational actions proposed, the 
Environment and Public Works Committee, can take a leadership 
role in developing solutions that work.
    I would note that the EPA has said a number of times that, 
at this point, we have no impaired streams due to silviculture. 
Of course, the New Hampshire Department of Environmental 
Services has to revise that list every 2 years. We may not have 
anything to worry about for 5 years.
    Senator, forest landowners need to take a view that is much 
longer than 5 years. My members grow and manage crops in their 
forest on a rotation of 50, 100, 100-plus years. Saying that 
something won't happen for 5 years is akin to telling a corn 
farmer, ``Don't worry. The new harvesting regulations don't 
kick in until July.'' It's as simple as that. Thank you.
    [Applause.]
    Senator Smith. Thank you very much. Charles Niebling, the 
Society for the Protection of New Hampshire Forests.

 STATEMENT OF CHARLES R. NIEBLING, SENIOR DIRECTOR, POLICY AND 
  LAND MANAGEMENT SOCIETY FOR THE PROTECTION OF NEW HAMPSHIRE 
                            FORESTS

    Mr. Niebling. Thank you, Senator Smith, Senator King, 
Staff. I am Charles Niebling, director for Policy and Land 
Management with the Society for the Protection of New Hampshire 
Forests. The Forest Society is a nonprofit conservation 
organization dedicated to the wise use of New Hampshire's 
natural resources, and their complete protection in places of 
special environment or scenic quality.
    In addition to our role as a land trust and a conservation 
advocate, we also own and sustainably manage 33,000 acres of 
productive woodlands in 123 reservations across the State. We 
not only preach good forestry and conservation, but we practice 
it, as well.
    I appreciate the opportunity to offer these remarks on the 
EPA's proposed TMDL and NPDES rule revisions. I'm here today to 
offer our general support for the new directions addressing 
agricultural and silvicultural issues set forth in the May 1, 
2000, joint statement issued by the Department of Agriculture 
and EPA, but to also express views about further changes that 
need to be made.
    Throughout our 99-year history, the Forest Society has 
championed the importance of water quality as a core part of 
its land conservation and forest management work.
    Senator, my written remarks summarize that history and 
we're very proud of it, but I won't belabor that right now.
    Senator Smith. That will be part of the permanent record.
    Mr. Niebling. Thank you.
    When we submitted our comments on the proposed TMDL rule 
revision in January, we indicated that we opposed the 
revisions, because we did not support the reclassification of 
forestry operations from the nonpoint source category to the 
point source category.
    We also opposed the removal of authority for monitoring 
TMDLs from the State to the Federal level. We argued that 
placing too heavy a regulatory burden on private landowners, 
especially in a State like New Hampshire where development 
pressure on our forests is very great, might predispose land to 
development. From a long-term nonpoint source water quality or 
forest sustainability standpoint, Senator, forestry operations 
will always be better than the best parking lot or residential 
subdivision.
    Thus, we were encouraged this week when we received a copy 
of the joint statement issued by USDA and EPA, announcing 
modest changes in the proposed rule. It would seem that EPA is 
listening to the people of New Hampshire and thousands of 
others around the country, who believed that the original draft 
rule simply went too far.
    We want to particularly commend EPA and USDA for formally 
recognizing the following points in their joint statement:
    First, that State governments and local citizens should 
take the lead in developing pollution budgets for impaired 
waterways;
    Second, that voluntary and incentive-based approaches are 
the best way to address nonpoint source pollution;
    Third, that EPA will work with States that may need help in 
developing forestry BMP programs for a period of 5 years before 
they start issuing NPDES permits;
    And finally, that only if a State does not have an approved 
forestry BMP program, after 5 years, will the State or EPA have 
the discretion to issue permits.
    Unfortunately, from our standpoint, the joint agreement 
does not go far enough. Our greatest concern is that the final 
rule will continue to define forestry activities as a point 
source category, controverting over 25 years of Clean Air Act 
statutory interpretation. We are also concerned that EPA wants 
to have the authority to approve State BMP programs based on, 
as yet, undefined criteria.
    Until and unless the silvicultural aspects of the rule are 
modified to affirm forestry activities in the nonpoint source 
category, the Forest Society cannot support it. We are 
encouraged by the movement EPA has shown in recent weeks. 
Regardless of whether EPA makes further modifications, we hope 
that they will re-notice the draft rule for further public 
comment.
    The Clean Air Act will go down in history as one of our 
Nation's most successful environmental laws. The improvements 
to New Hampshire made through regulation of point source 
pollution are extraordinary and well documented.
    Now, we face the far more complex challenge of reducing 
nonpoint source pollution. With respect to forestry, we believe 
that New Hampshire's approach of aggressive promotion and 
education of voluntary BMP's has worked relatively well and can 
continue to work.
    Are there problems with some forestry operations? 
Absolutely. We do not believe more burdensome regulations will 
necessarily solve the problem.
    Senator, we support elements of the Water Pollution 
Enhancements Act of 2000 because we believe it targets Federal 
assistance and support where it will have the greatest positive 
impact. Three specific needs in New Hampshire that could be 
addressed through provisions of this Act are:
    First, improved compliance education of forestry BMP's;
    Second, support for a stronger enforcement capability 
within the Water Resources Division of DES and the Division of 
Forests and Lands within our Department of Resources and 
Economic Development;
    And I will note, for the record, that New Hampshire has had 
10 forest rangers since 1949, when their only responsibility 
was fire detection and prevention. It's time that that was 
addressed; and, perhaps, these funds could enable an enhanced 
capability in that area.
    And finally, support for BMP compliance monitoring on 
active forest harvesting operations.
    You know, we have said for years that BMP's are being 
widely implemented on forestry operations and they're working; 
but the fact of the matter is, we don't have good information 
to support that contention, and we need that. And we certainly 
need it before we contemplate any further regulation of those 
practices.
    So, with that, thank you for the opportunity to testify on 
this important issue.
    Senator Smith. Thank you very much. As I----
    [Applause.]
    Senator Smith [continuing]. Introduce Mr. Swanton from 
Champion International, I'd like to also applaud his company 
for its leadership in making, at least, initiating a proposal, 
making thousands of acres of timberland that they own 
accessible to the public for a recreation's partnership and 
initiative. I think it's certainly far-reaching and it's 
certainly welcome. And I know there are many folks in the north 
country, and probably some of the flatlanders, as well, who get 
up here to enjoy it; but let me introduce you and thank you for 
being here today.

 STATEMENT OF JOEL SWANTON, MANAGER OF FOREST POLICY, CHAMPION 
                         INTERNATIONAL

    Mr. Swanton. Thank you, Senator. Senator Smith, and Senator 
King, and members of the staff. My name is Joel Swanton. I am a 
resident of Holden, ME, but I have responsibilities of 
representing Champion International in its forest resources 
operations as manager of Forest Policy in the Northeast region. 
We appreciate the invitation to share our concerns about the 
EPA's proposed rules, and also our comments concerning your 
proposed legislation, S. 2417.
    Here, in the Northeast, we are responsible for the 
sustainable management of over 1 million acres of forestland 
between Maine and New Hampshire, part of a large ownership of 
close to 5 million acres in the United States. We, the 
foresters, and the people who work on these lands, and the 
communities that we live in, depend directly on the health and 
productivity of these forests for our livelihood.
    One of the core values and responsibilities of the 
forestland ownership is water quality, and we take that 
responsibility personally and seriously. Our ownership in New 
Hampshire, 170,000 acres, I just referred to, just north of 
here right at the tip of the State, includes the headwaters for 
the Connecticut and parts of the Androscoggin Rivers. Both are 
very important bodies of water in this region.
    EPA's proposed changes are not justified, either in terms 
of need or improved environmental benefits as they regard to 
the implications on silvicultural operations. I think you've 
heard that over and over again today, and probably many times 
more before we complete the hearing.
    In our region, and you heard also, silviculture and 
forestry is not a significant threat to water quality. The 
successful voluntary and regulatory initiatives in this region 
are already in place to ensure that silvicultural activities 
are undertaken with measures to protect water quality. These 
programs would be jeopardized with the proposed changes in the 
rules. And while we appreciate Mr. Fox's efforts to improve the 
proposed rule with the recent joint announcement, the proposed 
changes falls quite short of what we would see as improvements.
    I'd like to talk a little bit about our forest management 
activities. We've talked a lot about the rules, and processing, 
and policy today. If we could for a minute, let's go out in the 
woods.
    Our activities in the Northeast region include harvesting, 
forest management road construction, and other silvicultural 
activities to improve the health, and quality, and productivity 
of our forests. All of these activities that we conduct on the 
ground have planning and monitoring components that address 
water quality.
    Before we begin any activity on our lands, our foresters 
develop plans incorporating State regulations and Best 
Management Practices, development under the Clean Water Act, as 
well as, our own riparian management and guidelines. We 
consider the silvicultural prescription for area, the timing 
and season of the operation, the type of soils, the potential 
for erosion, and the type of equipment or operation. Once 
activity begins, we monitor and inspect these operations on a 
regular basis. Should a water quality issue arise, we are able 
to address it quickly.
    As you heard earlier from the State agencies, there is 
ongoing monitoring of all of our operations on our property at 
all times by State agencies; and an informal amount of 
monitoring by the many members of the public using the land 
that also assures that if a water quality concern arises, we're 
going to hear about it.
    We also conduct a broader annual water quality BMP audit of 
our operations in this region, often involving outside natural 
resource professionals who identify areas for improvement.
    In addition to what is required by law, Champion 
International, and many other members of the forestry industry, 
are participating in a voluntary national program called the 
Sustainable Forestry Initiative, SFI.
    Under SFI, we must meet or exceed all established BMP's and 
State water quality regulations under the Clean Water Act. And 
for us, that has the strength of membership requirement within 
our trade organization. If we don't meet those standards, we're 
not a member.
    SFI requires that we establish riparian protection measures 
for all streams and lakes; and Champion has developed and 
implemented riparian management guidelines for our ownership, 
that, in most cases, far exceeds State standards.
    We're also the first company in the United States to commit 
to full third-party verification of our performance under the 
SFI standards; and these reviews look at both the systems we 
have in place to protect water quality, as well as, our 
performance on the ground. We have engaged Price Waterhouse 
Coopers to conduct these audits on a national basis, and we'll 
have all of them done on the U.S. ownerships by the middle of 
2001; but, in the Northeast region, it will be reviewed again 
in October of this year, and it will be the fourth time since 
1996 that we've had an external review of our operations.
    We also support the efforts you've heard about to encourage 
other landowners to protect water quality. We purchase wood 
from many of the landowners in this region, and our foresters 
require that loggers and landowners that sell wood to us to 
comply with State water quality regs. and BMP's, and we audit 
those operations for their performance.
    Also, under our commitment to SFI, we sponsor and support 
training for loggers and landowners to address water quality 
issues. And in Maine and New Hampshire, under SFI, we 
participate in a process for the public to raise concerns about 
forest practices. By calling an 800 number, people can identify 
site-specific areas of concern, such as water quality, and be 
assured of a followup on that operation by a forester who will 
focus on education and change in behavior, if necessary.
    You've heard over and over again, the EPA, nationally and 
regionally, recognizes that silvicultural and forest management 
activities are not a significant source of water quality 
impairment. I believe, in part, due to the efforts that we've 
just described.
    I attended the March meeting this year with the members of 
the New Hampshire forestry community with the EPA's Regional 
Staff, and heard EPA staff 's statement which you read earlier, 
that ``silviculture in New England is not a threat to surface 
water,'' it begs the question: Then, where is the problem?
    EPA's own data illustrates silviculture nationally is at or 
near the lowest source of water pollution, again, even below 
the natural sources.
    We think that the existing network of regulatory and 
voluntary oversight works very well, and EPA's own statistics 
tell us that that's accurate. These rules are just plain 
unnecessary. The inclusion of these activities as point source 
discharges subject to TMDL's in impaired waterways could pit 
forest landowners and sparsely populated rural areas, like the 
north country of New Hampshire, against heavily populated 
municipalities when it comes time to determine TMDL's 
determinations.
    One point that I would like to make and it's very unique to 
this region, and I'm a little bit upset that we had to share 
it, because it's very obvious to those of us who live here, a 
Federal permitting process, such as this, would invite 
increased intervention and lawsuits by special interest groups 
who want to challenge private forestry practices. Large, 
private forestland ownerships, like ours in this region, have 
been targeted by national and regional preservation groups for 
the purpose of conversion to public ownership and removal from 
those lands of the timber harvesting and management that 
sustains our economy in this region. This is not some thought 
up agenda. It's very real.
    Since 1995, numerous legislative and public policy 
initiatives to ban or restrict forest management practices have 
been initiated in attempts to make private ownership of these 
lands economically unviable. Including silvicultural activities 
in this rule as a point source would provide a valuable tool 
for that agenda.
    Consider simply the impact on our operations just from the 
NPDES permitting process. Let's go out into the woods, as I 
mentioned earlier.
    Last winter, folks in this region had a heavy snowfall. The 
snowmobile industry loved it, but it makes our operations very 
difficult. Loggers on our ownership were faced with 5 to 6 feet 
of snow. We had to make some decisions to move into areas where 
we could safely and economically operate for the rest of the 
winter on relatively short notice. How long would it have taken 
us to get a Federal permit under EPA's proposed rule in order 
to meet that need?
    This year, we had an early spring thaw; perhaps, just 
today. We always shut our operations down during mud season; 
but toward the end of the winter season, we'll move the 
operations to areas where the environmental risk is going to be 
minimal. That happened in late February and early March this 
year. Much earlier than normal. We had to react fairly quickly, 
and the flexibility to react to weather changes like that to 
minimize risks could be lost under the requirements for Federal 
permits.
    And the last example, many of the loggers and landowners in 
this region deal with on a constant basis. Our business is not 
a steady, ongoing business. It's not always the same every day. 
Markets change. Last summer, the market for hardwood pulpwood 
in this area was glutted for a variety of reasons. Our 
operations had to be changed and moved on relatively short 
notice, so that they could be put into areas where we could 
productively work and operate throughout the summer with the 
change in market conditions. How would we have that kind of 
flexibility under a NPDES permit?
    The proposed revisions to the rule announced last week do 
not address our concerns. The revised proposal still calls for 
changing the designation of silvicultural activities from the 
nonpoint source to point source. We would still be subjected to 
NPDES permits, and there's no justification for it.
    The revised approach is even more expansive than the 
original rule; and, again, once EPA and USDA impose that 
jurisdiction over forestland activities on private lands, for 
the first time, as a result of that, environmental and 
governmental organizations would have the ability to dictate 
those forest management activities on private lands. And that's 
not what this country's all about, Senator----
    [Applause.]
    Mr. Swanton [continuing]. Also, we heard earlier, the 
criteria for acceptable State programs is unclear; and we've 
heard that from the State agencies, as well.
    The real test of whether this proposed rule and the recent 
changes are needed at all lies with this question, and I will 
even venture an answer to that: Will this proposal result in 
any improved ability of EPA, or the State agencies, or private 
landowners to prevent or correct water quality problems from 
forestry operations? The answer is: No.
    We do not believe this rule should be finalized.
    Senator, we support your efforts to address water quality 
issues in a more meaningful way through your proposed S. 2417. 
We think its focus on improving resources for the State along 
the lines of funding and improving the data quality makes 
sense, and we think really states the issues here.
    We also support legislation introduced by Senators Lincoln 
and Landrieu to codify the existing nonpoint regulatory status 
of silviculture, so we're not constantly battling these issues 
every few years; and we hope you will consider these issues as 
an important part of the debate when you hold hearings.
    Senator, you made the comment in your opening statements 
about a little bit of the history here; and on my way over here 
this morning, I was thinking back. Think of where we were a 
generation ago, or, perhaps, less than a generation ago. A 
little bit west of here lies the Connecticut River; and on May 
6, a generation ago, that river was full of logging activities, 
moving the product to market. How far we've come in less than 
one generation, where Society used to manage land--the water is 
edge out for towns, and farms, and the forest; and we've now 
turned 180 degrees in less than one generation. We don't need 
to be making things more complicated. We need to make things 
work, and some flexibility and reality here would help.
    We appreciate the opportunity to testify. Thank you very 
much.
    [Applause.]
    Senator Smith. Thank you very much, Mr. Swanton. If anybody 
wishes to speak, step up to the microphone, and I'd be happy to 
take your questions.
    If I thought for 1 minute that any legislation that I 
proposed or would vote for would contribute to the destruction 
of the water quality in any way, I wouldn't support it. People 
want to do better. And I think if we went back a hundred years, 
there's no question that the waterways were used for logging, 
and the rivers were certainly the main centers of commerce. 
Everybody expelled their waste and to move it out, as if it 
would never come back to haunt us. Well, we've changed that 
now. Some of these laws that were passed in the 1960's, 1970's, 
and 1980's, including the Clean Water Act, were good laws that 
were emergency measures that needed to correct the problem. I 
think if you look over the last 30 years, however, with good 
stewards--folks like all the people here at this table and 
others who will testify--that people are attempting now to move 
away from the Federal regulation and into good long-term 
stewardship. That's what we're trying to accomplish on the 
committee. It's difficult. Mr. Fox and others from EPA I think 
have the same goals that we do, but we all need to look now 
forward to a different approach, a new paradigm, if you will. 
This is an opportunity to bring in cooperation, rather than 
confrontation. This is a confrontational rule that, I think, 
will be not productive; although, it may be well-intentioned.
    Mr. Robinson. A question for Mr. Swanton. You made the 
comment about the river being full of trees 80 years ago; but 
80 years ago, the White Mountain National Forest was pretty 
much totally stripped of trees. It's through efforts, such as 
your company's doing now, that we don't do those practices any 
more. I think that's been pointed out, that we do work with 
keeping our forests going all the time, instead of stripping 
them once every 80 to 120 years. And, maybe, you could add some 
comments to that?
    Mr. Swanton. Yes, my comment was not meant to denigrate our 
ancestors. At the right time and the right place, that was the 
situation that they dealt with.
    The White Mountain National Forest looked pretty good this 
morning as I had an opportunity to fly over it, despite what it 
may have looked like over 100 years ago. And I think as our 
society evolves and our economy improves, we are fortunate to 
live in a country that's got the wealth and the ability to 
ensure natural resources the way we do, and we do things 
differently than we did 50 years ago. We think differently than 
we did 20 years ago. We've got that opportunity to move ahead.
    When the river was full of logs 70 years ago, that was the 
right thing to do during that time. When our first European 
ancestors settled here, they cut from the water's edge in and 
they cleared land for cities, and cleared land for farms, and 
they managed land for forests.
    My point was that in the case of the short time of a 
generation, we now treat the edges of water bodies and water 
quality 180 degrees differently than we did less than a 
generation ago. We preserve, we conserve, and we make sure that 
that water quality stays clear, and we continue to learn. But 
prescriptive rules are not going to achieve those goals.
    Senator Smith. I might also add to that, Mr. Swanton, in 
what I would consider a new paradigm of environmental policy, 
we would have to expect that as we did 50, 75 or 100 years ago, 
the next century will have different practices from what we 
have now. We need to give ourselves the flexibility to adjust 
with new technology that comes our way. We're doing that with 
the Everglades in South Florida. We're not going to implement a 
36-year plan that says we're locked into it for 36 years. We're 
implementing a plan that says every 2 years or so, we can look 
and see if the pilot project is working on some particular 
aspect of that project; and if it isn't we can make changes. 
That's sound science and prudent management.
    Let one ask a question of the panel.
    When I made my opening remarks, I mentioned the EPA Region 
I individual--I don't mean to get him into trouble here but Mr. 
Manfredonia, who was quoted as saying that ``forestry is not 
an, issue for water quality here in New Hampshire.''
    I'm asking the three of you: Have you been getting direct 
comments from anybody from EPA over the past several months, 
over the last year or so, that somehow you're doing something 
wrong; or that any of your members are doing something wrong? 
Are you not following good environmental standards or quality, 
water quality standards? Is there something that's happened 
that would lead you to believe from any comments that any 
individual made here on the ground that EPA or DES, that 
somehow there was a problem here with water quality based on 
the forest?
    Mr. Kingsley. Senator, the comments we've been receiving is 
that we're doing things right, and that the commitment that the 
forest industry has made, and the commitment that the State's 
Conservation Community has made, and the partnerships that 
we've made with the State Government here have paid off in 
terms of water quality. You know, I heard Mr. Fox, he and I 
spent some time together before coming here, saying that this 
really should not be an issue for us.
    Once this rule is in place, it is not going to go away; and 
I think one thing that everyone knows in this room is it's 
never going to get ratcheted down. And we have some very real 
concerns about how this rule may be implemented in the future.
    The core issue remains unresolved and that is: In some 
circumstances in the EPA's proposal, they will regulate 
forestry as a point source solution, and that simply is not 
acceptable.
    Mr. Niebling. I haven't heard any comments. I would say 
that in the 14 years that I've been involved in forest policy, 
we've really seen extraordinary improvements, both in terms of 
our understanding of BMP's and which are most effective; in 
terms of landowners' receptivity to apply them and without 
having to be retold to do it, on a strictly voluntary basis; in 
terms of the relationship between the regulated community and 
the Department of Environmental Services, and the Division of 
Forest and Lands, it seems like much more of a team approach. 
Now they resolve what issues there may be and become less 
confrontational.
    Mr. Robinson. Thank you.
    Senator Smith. Thank you. What about from your perspective 
or Champion's?
    Mr. Swanton. Senator, we're not aware of any implications 
from EPA that our organization has a problem with forestry 
operations that would constitute the need to move them to point 
source.
    As you've heard, we continue to receive positive comments 
from both State agencies and EPA about the voluntary efforts 
and the collaborative efforts that we've taken with State 
agencies and the EPA; to address forestry issues from a 
nonpoint source prospective to existing State regulations and 
BMP's, it's working.
    Senator Smith. Mr. Hodsdon, do you have a question?
    Mr. Hodsdon. Yes. You'd be interested in the comments that 
I have heard a couple of times. The Professional Loggers' 
Program and the practices and workshops of the Timberland 
Owners' Association, that Mr. Kingsley has been promoting over 
the last few years, have made a dramatic improvement in the 
forest practices of BMP's.
    Senator Smith. Thank you very much. I'll make this the last 
question for this panel.
    Mr. Wood. Thank you very much, Senator. My name is Jonathan 
Wood. I am here today as the chair of the Policy Committee for 
the New England Society of American Foresters, and I thank you 
for the opportunity to have a field session here in the 
northern country. It's truly refreshing. Thank you very much.
    My question relates to our role as foresters. The New 
England Society of American Foresters is about, oh, 1,200 
natural resource professionals throughout the New England 
States who do everything from implement the Best Management 
Practices on the ground and harvesting operations, educating 
young foresters in our schools, working with an industry, 
private consulting, and also in the policy arena; and we're 
finding the policy arena more and more important because the 
impacts that far-reaching laws like this might have on our 
ability to manage those resources.
    Our organization opposes the rule. We have great concerns 
about it, and it's unusual for our organization to actually 
take a public standpoint. Because of the diversity of the 
organization, we have a lot of dedicated scientists who are 
truly, truly dedicated to the health of forests and ecosystems 
and to the quality of the waters that they provide for all 
Society.
    My question is: As we, as practicing foresters, delve into 
the arena of policy on a more and more necessary basis, how do 
we get our word across? How can our understanding of the 
science be put into the political arena in a meaningful manner?
    I respect the panel very much, and I think you might have 
some insight into that. You spoke very eloquently about 
forestry being on a 100-year basis. Yet, we are consistently 
faced with opportunities and challenges of new regulations that 
impact us on a much more frequent basis; and it's very 
challenging to adjust to that.
    How can scientists get their influence more effectively put 
into the political process so that we're not challenged in this 
manner in the future?
    Mr. Niebling. Is it Bruce Vincent who said that the world 
is run by those who show up?
    [Laughter and applause.]
    Mr. Niebling. And I think many in the forestry community 
haven't been showing up, and that goes for practicing 
foresters, and loggers, and scientists, researchers--
particularly, researchers.
    You know, people in research tend to want to seal 
themselves away from controversy and simply go about their 
science without having to concern themselves about how that it 
is going to be used, and maintain some impartiality, 
independence from the issues of the day so that they're not 
inadvertently influenced by it.
    But I think we don't have the luxury in this country or on 
this planet of those of us involved in the business of 
producing the goods that people need to use every day to not be 
engaged in and participate on a regular basis in these policy 
discussions. We just don't have that luxury any more.
    Mr. Wood. Thank you.
    Senator Smith. I just might add a footnote. The 
Environmental Protection Agency has a wealth of data and 
information. A lot of people who do research that could be 
provided in a nonconfrontational and an informational way, 
could also enhance what we do. Sometimes, you get the Madison 
Avenue lawyer who comes in before the zoning board with the big 
proposal for a development. He or she is somewhat intimidating 
for a person who works on the Board of Adjustment, or the local 
planning board, or zoning board. I think we certainly could do 
much more to seek partnership and cooperation rather than 
confrontation.
    Does anybody have a final comment?
    Mr. Kingsley. Senator, I just simply wanted to ask if I'd 
be able to enter a few things in the record?
    I think you know that a lot of New Hampshire landowners 
have some real concerns about the TMDL proposal. I have some 
letters from people that I'd like to enter into the record.
    Also, given the fact that Mr. Fox took the opportunity to 
enter the USDA/EPA statement earlier this week into the record, 
I'd like to provide the response to those concerns.
    Senator Smith. All of this will be made part of the record. 
Let me just State for the record that I will leave the record 
open until next Friday, close of business, the committee 
records; so that if anybody wishes to provide me with testimony 
or statements on either side of the issue, or any agency or 
individual, we'd be happy to make that part of the record. So, 
any new information that you have will certainly be received 
and put in the record.
    Mr. Kingsley. Thank you, Senator.
    Senator Smith. If the next panel would come forward?
    Mr. Tom Buob, University of New Hampshire Cooperative 
Extension; Ms. Nancy Girard, Conservation Law Foundation; Mr. 
Scott Mason of Northwinds Farm, Coos County Farm Bureau from 
North Strafford, NH; and Mr. David Paris, Water Supply 
Administrator, Manchester Water Works, Manchester, NH. This 
will be the last panel; and, as I indicated earlier, we will 
have some time at the end if anybody wishes to make a statement 
for the record at the end of the hearing.
    It is going a little bit longer than I anticipated; but 
with your patience, we'll finish. I did not want to be in a 
position to shut people off from making comments, because 
that's what we're here for.
    So, let me start with you, sir, Mr. Buob.

STATEMENT OF TOM BUOB, UNIVERSITY OF NEW HAMPSHIRE COOPERATIVE 
                           EXTENSION

    Mr. Buob. Senator, my name is Tom Buob and I work for the 
University of New Hampshire Cooperative Extension located in 
Grafton County at North Haverhill. And in my position as an 
extension educator, I've spoken with a lot of farmers over the 
past year or so on the issues related to improving management; 
and, basically, they have some concerns about the increased 
level of proposed regulatory guidelines from EPA.
    Most of their concerns seem to be that regulations or 
increased regulations will not necessarily address the nonpoint 
source pollution issues and it will result in increased costs 
for agricultural production. Regulation is or can be fairly 
complex, resulting in confusion, frustration, and undue 
paranoia. I think some of this has been evident in some of the 
meetings that we have held, and that Scott Mason has held for 
the Farm Bureau in other parts of the State.
    I realize that many people do not give much credence to 
voluntary methods of reducing nonpoint source pollution. But as 
an extension educator in the crop and soil management area for 
more than 20 years, I feel that a voluntary stewardship effort 
based on education is much more effective than any regulatory 
approach. Farmers basically live in their own environment. 
They're very interested in protecting that environment, because 
they're the first ones that are affected.
    Farmers have been doing many things correctly and are 
actually very interested in making changes which will improve 
the environment and reduce the risks of nonpoint source 
pollution.
    The USDA agencies, including UNH Cooperative Extension, the 
NRCS, FSA, Farm Services Agency, local conservation districts, 
and local conservation groups have all been working together in 
the Connecticut River Valley to address issues in agriculture, 
which will reduce or minimize the impact on nonpoint source 
pollution on water quality, both ground water and surface water 
quality.
    Through on-farm research and education, I feel that the 
risk of nonpoint source pollution has been decreased. We have a 
decreased nutrient loading annually by 70,000 pounds of 
nitrogen and 25,000 pounds of phosphorus just in Grafton 
County.
    A renewed effort is now underway to take the work that has 
been done in Grafton County and spread throughout the 
Connecticut River Valley from the Canadian border down to the 
Massachusetts border.
    Obviously, financial incentives work. But there also is a 
need for increased funding for research and educational needs.
    I'd just like to make a few points. The bottom line is to 
protect or enhance water quality, while sustaining the 
viability and profitability of agricultural operations, and 
maintain the working landscape.
    Most farmers and their families live where they work, and 
they're the first ones to be affected by anything that goes 
wrong. They do not ignore the environment around them.
    New England is not like the rest of the country. In fact, 
if you look at the three northern New England States, their 
approaches to nutrient management are very different. One-size-
does-not-fit-all.
    There are more than 250 different soil types across New 
England States; so, site-specific management practices are 
necessary.
    There is a need to develop better tools, and they have to 
actually work on the land. You can't just develop tools and 
hope they'll work. You have to show that they will work.
    Regulations are static; management has to be dynamic to be 
successful. Technology, unlike regulation, is in constant 
motion; and all you have to do is pick up the paper, and you'll 
see that.
    Voluntary stewardship, based on good science, education, 
and learning, will allow agriculture to adapt to changes and 
still minimize the risk of pollution.
    I believe that a program that supports research, education, 
and training along with financial incentives to make the needed 
changes that are identified, will be far more successful in 
addressing the environmental issues than any regulatory 
program. Thank you, sir.
    Senator Smith. Thank you very much.
    Ms. Nancy Girard of the Conservation Law Foundation. I made 
a mistake of calling it the Conservative Law Foundation and, 
maybe, that was wishful thinking. I apologize for that. 
Welcome, and I'm glad you're here.

   STATEMENT OF NANCY L. GIRARD, VICE PRESIDENT & DIRECTOR, 
   CONSERVATION LAW FOUNDATION NEW HAMPSHIRE ADVOCACY CENTER

    Ms. Girard. Thank you, Senator; and good afternoon, Senator 
Smith, Attorney Pemberton, and Attorney Klee.
    For the record, I am Nancy Girard. I'm vice president and 
director of the Conservation Law Foundation's New Hampshire 
Advocacy Center. Thank you for this opportunity to testify 
before the committee to address the Environmental Protection 
Agency's proposed revisions to regulations implementing the 
Clean Water Act's Total Maximum Daily Load, National Pollutant 
Discharge Elimination System, and Water Quality Standards 
programs.
    As the committee is well aware, EPA proposed substantial 
rule revisions to these programs on August 23, 1999. Like 
numerous interested parties, the Conservation Law Foundation 
filed comments with EPA to address concerns with the proposed 
revisions. In our comments, CLF strongly opposed the proposed 
revisions and requested that EPA withdraw them and reconsider 
its approach.
    By way of background, let me describe the Conservation Law 
Foundation. CLF works to solve the environmental problems that 
threaten the people, and natural resources, and the communities 
of New England. We maintain an advocacy staff including over 25 
lawyers and scientists. Our advocates use law, economics, and 
science to design and implement strategies that conserve 
natural resources, protect public health, and promote vital 
communities in our region. Founded in 1966, CLF is a nonprofit, 
member-
supported organization with over 10,000 members. We maintain 
advocacy offices in Maine, New Hampshire, Vermont, and 
Massachusetts. Our advocates focus on issues of national, 
regional and local significance, as well as, those issues that 
may affect States, such as Connecticut, Rhode Island, and New 
York.
    We firmly believe that EPA's proposed regulatory revisions 
will significantly affect efforts throughout New England, 
including New Hampshire, and nationally, to correct major water 
pollution problems and clean up watersheds.
    New England, like many other regions, continues to have 
significant water pollution problems. Each of the New England 
States has identified waters that fail to meet State water-
quality standards. These pollution problems include: nutrient 
pollution that imperils recreational use and aquatic habitat in 
our lakes, ponds and coastal areas, sedimentation that harms 
important fisheries, disruption of natural river flows, and 
toxic pollution and pathogens that threaten public health. EPA 
and the States must enhance their efforts to document and 
correct these critical pollution problems.
    As an important component of the approach to clean up New 
England's polluted waters, CLF strongly supports the Clean 
Water Act's TMDL provisions set forth at 33 U.S.C., section 
1313(d).
    Over a quarter of a century ago, Congress enacted the 1972 
Clean Water Act, which established detailed provisions, 
designed to ensure prompt clean up of the Nation's waters. 
Indeed, water-quality-based effluent limitations were to be 
achieved over 22 years ago; water quality suitable for fish, 
wildlife, and recreation was to be attained over 16 years ago; 
and discharges were to be eliminated over 14 years ago.
    Central to achievement of these timelines, section 303(d) 
of the 1972 Act mandated the total maximum daily load, TMDL, 
program, which is designed to ensure prompt identification of 
impaired and threatened waters, and the setting of maximum 
daily pollutant loads for those waters. Under the time line 
intended by Congress, pollutants suitable for load calculation 
were to be identified by October 1973, States were to identify 
impaired waters and submit TMDLs for those waters by April 
1974; EPA was to approve or disapprove that identification and 
those TMDLs by May 1974, and in the event of disapproval, was 
to establish TMDLs by June 1974. Thus, TMDLs, whether EPA 
approved or EPA established, for all impaired waters were to be 
in place 25 years ago.
    This clear congressional intent remains unfulfilled, and 
remains unfulfilled to this day. The cause is not far to seek: 
EPA has massively failed to comply with their statutory 
obligations.
    Only recently, in response to numerous lawsuits filed 
across the Nation challenging the inaction of EPA and the 
States, have initial steps been taken to implement the TMDL 
provisions of the Clean Water Act. Only with significant 
additional funding and effort devoted to implementation will 
the TMDL provisions of the Clean Water Act achieve their 
initial purpose and promise. The proposed regulatory provisions 
will simply confuse and undermine implementation efforts.
    The TMDL requirement is one of the cornerstones of the 
Clean Water Act. In order to assure that remaining water 
pollution problems are effectively addressed, it is critically 
important that the TMDL program not be undermined or weakened. 
Instead, the program should be strengthened and fully 
implemented. The first major step taken in actually 
implementing these long-ignored provisions of the Clean Water 
Act should not be to substantially revise existing regulatory 
requirements.
    CLF's comments to EPA raised several important substantive 
issues, including that the rule revisions would: unlawfully 
delay development of TMDLs; unlawfully abdicate EPA's 
responsibility to develop TMDLs when States fail to; undermine 
public participation in the TMDL development process; 
unlawfully add factors for determining whether agricultural and 
silvicultural activities fall within the CWA's definition of 
point source discharge of a pollutant; create an inadequate and 
unlawful offset or trading program that would allow polluting 
discharges to continue without meeting water quality standards; 
and exempt existing discharges from compliance with water 
quality standards, even if they expand their discharge up to 20 
percent.
    Each of these concerns address facial violations of 
specific statutory requirements of the Clean Water Act. Unless 
each of them is addressed, and EPA's approach substantially 
revised, the proposed regulatory revisions would cause endless 
legal challenges and interminable delay in correcting critical 
water pollution problems.
    Due to the complexity of the proposed regulatory revisions, 
their broad scope, and their fundamental flaws, EPA should 
revisit its approach and provide an additional opportunity for 
public comment. Indeed, each of the provisions of the proposed 
revisions warrant an independent rulemaking. As a result, CLF 
has requested and continues to urge EPA to withdraw the 
proposed revisions and take a fresh look at needed improvements 
in the TMDL program.
    What we're asking is the same thing you've heard at the 
State House, which, essentially, under New Hampshire law, under 
541-A, would be to pull the rule. Start again. We're advocating 
for this.
    CLF is very concerned with recent written and oral EPA 
statements to Members of Congress, including Senator Smith, 
highlighting potentially major changes to the initial rule 
proposal without providing any detail or specificity regarding 
possible changes.
    Given the likely major revisions that will occur in a final 
rule, CLF believes that the rule revisions should be noticed 
for additional public comment. Without an additional 
opportunity for public comment, we are concerned that all 
interested parties, not just special interests, but all 
interested parties will be deprived of an opportunity to 
meaningfully express their views in the process.
    In conclusion, CLF continues to oppose EPA's proposed 
regulatory revisions. Without substantial changes, the proposed 
revisions will violate specific requirements of the Clean Water 
Act, cause major confusion and unnecessary controversy, and 
massively delay clean up of polluted waters. The TMDL program 
should be implemented, not weakened. Adoption of the proposed 
revisions without substantial changes would represent a major 
setback for efforts to clean up polluted waters across New 
England and the Nation. Thank you, Senator.
    Senator Smith. Thank you very much.
    Mr. Scott Mason of Northwinds Farms, Coos County Farm 
Bureau.
    Mr. Mason, you may proceed.

  STATEMENT OF SCOTT MASON, NORTHWINDS FARM, COOS COUNTY FARM 
                             BUREAU

    Mr. Mason. Thank you very much. I am Scott Mason from 
Northwinds Farm, Coos County Farm Bureau. I would like to 
submit for the record my written comments. I'd like to thank 
you for providing this opportunity to speak on the EPA proposed 
TMDL and AFO-CAFO rules. I am Coos County Farm Bureau 
president, a vice president for New Hampshire Farm Bureau, 
chairman of the AFO-CAFO Committee, chairman of the American 
Farm Bureau Dairy Committee, a member of the Coos County 
Conservation District, member of the State Technical Committee 
for NRCS, and serve on a bi-state committee developing 
certification standards for Nutrient Management Planners. I'm 
also a commercial dairy farmer milking 150 registered Jerseys, 
and we also raise sweet corn.
    I would also like to thank Senators Smith and Crapo for 
introducing Senate bill 2417. This bill shows some common 
sense. EPA is trying to treat the nonpoint pollution problem 
the same way they have dealt with the point pollution--point 
source pollution problem. It is my understanding that Congress 
saw a difference in the way the two should be dealt with when 
the Clean Water Act was written.
    If the EPA is allowed to proceed with TMDL and AFO-CAFO, as 
proposed, American agriculture will be greatly reduced. The 
bill points out that there is a lack of funding to deal with 
nonpoint problems, both at the State level and at the landowner 
level.
    EPA is unwilling to look at the progress agriculture has 
made through true voluntary programs. EPA's idea of a voluntary 
program is that you will voluntarily conform, or we will fine 
you into voluntary compliance. Natural Resources Conservation 
Services have had a long tradition of voluntary conservation 
programs.
    There is a major difference between agricultural and 
industrial pollution. Ag pollution is not profitable to the 
farmer. Any farmer that is a livestock/crop farmer needs his or 
her nutrients in the field to grow the crops. Manure may be a 
byproduct of livestock, but is also an input for crop farming. 
Whereas, in industry, pollution is a cost to get rid of as 
cheaply as possible.
    If you come to my farm, and test the water, and find 
nutrients that have come from my farm, then I'm losing money. 
That is also true with pesticides. At $40 a gallon, I want to 
make sure that the spray stays in the field and keeps working. 
This is why nonpoint Ag pollution control can and should be 
handled differently than industrial pollution.
    In order to make good policy decisions concerning the 
relationship with forestry, agriculture, and the environment, 
you must also take a look at the traditional cost-share 
programs of NRCS. Funding is the major problem with trying to 
improve water quality today. This Administration has replaced 
funding of government programs that actually clean up the 
environment and reduce possible contamination with programs 
that educate the general public and create more government 
bureaucracies.
    The current EQIP funding for New Hampshire is a third of 
what the old ACP program was. However, the Connecticut River is 
listed as a historic river and Silvio Conte is building 
learning centers. Not only has funding levels gone down, but 
bureaucracy has gone up.
    It is now a 2-year process for money to be made available 
to the farmers through EQIP. Money is made available by 
priority watersheds, within which many watershed projects are 
rated, for environmental impact. Each project must be estimated 
for the cost and the impact that it will have on the 
environment at this time. This creates quite a bit of excess 
work. For instance in our county this year, we have six 
projects and we probably only have funding for two or three. 
There probably will be man-hours, of well over 300 hours, in 
deciding which one of those three will get funded. It is 
possible for a better-quality project not to be funded because 
it is outside of a priority watershed. Most farms in New 
Hampshire are not eligible for funding, because they are 
outside of the priority watersheds; or the money available for 
their watershed is not sufficient to do the project. There are 
only two watersheds in New Hampshire currently receiving enough 
money to build a manure storage system for a family sized dairy 
farm.
    A farmer can only apply once every 5 years for cost-share 
money. That means that he must apply all funding for all of the 
projects he needs to complete within the next 5 years at the 
time he applies. In order to comply with both AFO-CAFO and TMDL 
requirements, some farms would need almost the entire EQIP 
money for the State of New Hampshire at that one time.
    However, another rule would cap the cost share at $50,000 
per farmer per contract. Remember, you do not actually have to 
be polluting to be held liable in citizen litigation. All they 
need to prove is that you are not in compliance.
    We have seen a growth in EPA and DES funding of farm 
projects. However, to qualify for funding, the watershed must 
be identified as a problem area and the individual farm must be 
identified as a problem. DES has assured farmers that they will 
not penalize farmers for participating in these programs. 
However, I question whether the farmer is creating a public 
record of environmental misdeeds that could be later used 
against him in a citizen litigation. This has been done in 
Washington State by at least one citizen litigation lawsuit out 
there.
    I'd like to take a few minutes to talk about my experience 
on the SBREA Panel that reviewed the current proposed changes 
to the AFO-CAFO regulations. Most of the farmers are aware that 
the EPA currently classifies all farms over 1,000 animal units 
as a CAFO. EPA is currently in the process of reducing the 
minimum size of a CAFO to 300 animal units. They also would 
like to change the definition to include replacement heifers on 
a dairy farm.
    If these changes occur in the regulation, then all the 
dairies above 150 cows will be classified as CAFOs. What this 
does is it subjects the family farmer to citizen litigation. 
Congress allowed citizen litigation with point pollution 
sources. I'm guessing that it was because Congress felt that a 
private citizen needed more power to defend him or herself from 
corporate America.
    But to now allow citizens, or maybe more aptly put as 
multimillion or billion dollar environmental organizations with 
well-paid attorneys to sue family farmers, seems a bit unfair. 
Most farmers will choose to either sell or to settle out of 
court. Farmers do not have the money to fight these cases. The 
legal fees alone can run into the hundreds of thousands of 
dollars.
    EPA is also looking at mandatory 100-foot setbacks from the 
water for spreading manure. Yet, they allow me to spread sludge 
to within 10 meters of the river. I think the difference 
between these two setbacks have more to do with the fact that 
cows don't vote than good-quality science.
    In conclusion, I feel that the EPA is over-responding with 
the TMDL and the AFO-CAFO regulations. Nonpoint pollution can 
and should be handled better at the State level. Currently, 
there are economic forces at work driving the dairy industry in 
two different directions: (1) smaller part-time farmers; and 
(2) larger and larger farms. I feel that the cost to comply per 
cow will be greatest on the mid-size family farms if these 
changes come about.
    Farms, such as myself, will have a choice: We'll either 
have to get bigger in order to comply; we'll either have to get 
smaller; or we'll just have to get out. In the Northeast, that 
means more farmland will be made available for development. 
Privately, most DES and EPA officials I have spoken to feel 
that farms are less of a problem than sprawl for the 
environment. Congress must also look at the NRCS EQIP program. 
The application procedure needs to be simplified and the 
funding level needs to be restored.
    EPA cost share needs to be given to NRCS and distributed to 
farmers and landowners. NRCS had a perfect vehicle to get this 
money out to the right landowners. We need to empower State 
technical committees to develop funding procedures that make 
sense to the individual States. More research needs to be done 
to make sure that the proposed regulations will actually have 
the desired effects and won't actually cause some of the 
problems they're trying to prevent.
    I would encourage this committee to call a halt to the EPA 
trying to expand the Federal Government's role in nonpoint 
pollution. Thank you.
    Senator Smith. Thank you. Mr. Paris----
    Mr. Fox. [Indicating from the audience.]
    Senator Smith. I want to thank Mr. Fox for coming up. He 
does have a plane to catch, and there aren't too many right 
here. So, he has got to go. But, that he has also indicated 
that he would take any questions for the record and respond to 
them in writing. So, thank you very much, Mr. Fox, for your 
time here. We really appreciate it.
    [Applause.]
    Senator Smith. Mr. Paris, welcome.

     STATEMENT OF DAVID PARIS, WATER SUPPLY ADMINISTRATOR, 
                MANCHESTER WATER TREATMENT PLANT

    Mr. Paris. Mr. Chairman, thank you very much for this 
opportunity to address the committee today. I understand that 
our written statement, and that is the statement of American 
Water Works Association, on whose behalf I'm appearing here 
today, has been introduced for the record. I will briefly 
summarize those comments, and would like to elaborate on how 
this measure may possibly impact us in New Hampshire, actually, 
Manchester Water Works.
    But before I get into that, it's important to note that 
this is the beginning of National Drinking Water Week and it's 
not one of those things that comes up on everybody's calendar, 
unfortunately. I have brought along some hats from Manchester 
Water Works and you are welcome to take them back to 
Washington. I would hope you would wear them in the Beltway 
because they reflect upon actually some efforts that we made in 
Manchester to educate fourth graders.
    The measure that we have before you today,----
    [Laughter and applause.]
    Senator Smith [continuing]. There's a message in there 
somewhere----
    Mr. Paris. There is a message in there somewhere, yes. The 
message I would like to review, though, is that----
    Senator Smith. There goes your hat.
    [Laughter.]
    Mr. Paris [continuing]. Is that the opportunity to 
implement measures today will provide protection for water 
quality for the future, and we heard speakers speak to how 
today's water quality is different than it was a hundred years 
ago; and with the change in our demographics in Society, it's 
important that we take steps, be them contentious and 
controversial, to assure that drinking water, in particular, is 
protected for the future. A little bit about the American Water 
Association for those of you who have never heard of it, it 
represents the water utilities in the United States. We have 
56,000 members; Manchester Water Works, and the fair share of 
the larger utilities in the State of New Hampshire are members 
and overall AWWA represents about 161 million Americans who 
drink community waters, from a community water source.
    We, at AWWA, support the efforts to establish TMDLs. It's a 
good concept and we see it as a step toward the future, toward 
the 20-year, the 50-year, a hundred-year look toward the future 
of protecting water quality. However, we have to tell you that 
we feel it falls short currently in a couple of really 
important areas.
    First, the controversial elements of TMDL, our concern 
whether it can be implemented by EPA and to provide assurances 
that TMDLs will be followed. We think that some measures have 
to be done here to provide assurances; but we feel strongly, 
and I feel, personally, very strongly, that voluntary 
incentive-based measures are far more effective in establishing 
a long-term guarantee that these types of measures will be 
followed in the future.
    The types of things that water suppliers are concerned 
with, some of them that you have heard mentioned are nutrient 
loading, pathogen loading, and sediment release, and those 
types of issues become very important for people who are 
drinking the water that is effected by those things.
    The second issue that American Water Works brings forward 
to the table here, and it's been one of the issues that we 
brought up before, is that we feel the Nation's waters--and 
it's too bad that Chuck has left--need to be classified with 
drinking water as a highest and best use.
    Currently, for those of you that look at these types of 
standards, drinking water, and the use of our Nation's water 
for drinking doesn't receive any significant reference. We felt 
that this was a good opportunity to put that into the rules. It 
becomes a very pertinent issue when these rules are 
implemented. Citizens of our great Nation deserve that 
consideration.
    Now, getting on to Manchester, I have a unique opportunity 
to speak from both sides of the podium. It's almost too 
schizophrenic for me to handle. I'm here from the American 
Water Works Association and I'm speaking to you as a water 
supply administrator. Manchester Water Works, and there are a 
fair number of timberland owners here, who might recognize it 
as one of the major landowners in the southern part of the 
State of New Hampshire. We own 8,000 acres of property, 
forested watershed and we maintain that forest with the 
services of a professional forester, Mr. Ethan Howard, for 
those of you who know Ethan.
    Additionally, within 10 years, Manchester will be looking 
toward the Merrimack River as a source of its supply to supply 
that community of 128,000 people and that continues to grow on 
about a 2- to 3-percent basis annually.
    One critical aspect that we see with the Watershed 
Protection Plan is that in order to maintain a healthy forest, 
periodic cutting and releasing is important. We have practiced 
those--I say ``we'' in the collective--for over 120 years in 
Manchester, and that those practices assure, really, a higher-
quality water than it would without those practices being 
followed.
    The Best Management Practices involved with this forestry 
release program are of critical importance. Demonstration 
plots, and when I was a young employee of Manchester, just 
running the Water Treatment Plant, I had an opportunity to go 
to Hubbard Brook Experiment Station. That's right up the road 
here in Lincoln, NH. The Forest Service ran a demonstrate plot 
there; and they demonstrated that if you did not follow Best 
Management Practices with your forestry release programs, you 
would release nutrients, and nitrates, and various other, and 
you could demonstrate sediment and erosion if you did not do it 
right. And I think the people in this room do it right. I think 
we've heard today from people who are very responsible in their 
forestry practices.
    Senate bill 2417, Senator, is another opportunity to expand 
the science. We support that. We support its provisions for 
resource development and resources that will help implement the 
aspects of the rule. Our interest is to see that they get 
followed in some way, shape, or form.
    And another interest, certainly, that's important here is 
the urban nonpoint source discharge issue. It hasn't really 
seen a whole lot of discussion here today. But as well as 
agricultural and silviculture can have a significant impact, it 
does have a significant impact on water quality.
    And dealing with the issues of emerging pathogens, those 
things that make you sick that get into water, and ever 
tightening regulation, again, I wish Chuck was still here, it's 
important to understand that drinking water is ever more 
dependent upon source water protection initiatives. Things that 
people do to protect the water before it gets to the cities to 
be sure that it's clean and pure to drink.
    The regulatory environment creating incentives to insure 
that this happens is, by far, the best way to do it. Those 
incentives have to be supported.
    I hope that our written testimony and observations have 
helped you today. I realize I'm the last guy here on the 
podium, and I'm here to answer any questions. Thank you very 
much.
    Senator Smith. Last, but not least, thank you very much.
    I'd like to just say, Mr. Mason, that if cows could vote, 
we'd probably eat more chicken;----
    [Laughter.]
    Senator Smith [continuing]. At least, I think so. Let me 
just--again, we'll take a few questions; and if anyone has a 
question for this panel, please, feel free to walk to the mike. 
Mr. Mason, what is the ultimate goal here?
    My assumption is that we don't want to close down a farm or 
close down forestry operation and turn it into some industrial 
entity. And I think that's a reasonable assumption here.
    If this rule were to be implemented, could that happen; 
and, why? What specifically is going to happen to encourage one 
off the land.
    Mr. Mason. I know we're short on time, but I'll tell you a 
quick story.
    A good buddy of mine in college, his grandfather lived in 
the State of Maryland, and this is back in about 1920, 1925, 
and the State came out and they said he's going to have to put 
a thermometer--you've got to remember, this is back in the days 
where you put the milk in a jug and you put it into a spring, 
and that's how you kept your milk cold--kept your milk cold--
and the State came out and said, ``You have to put a 
thermometer in that spring and find out how cold it is.'' And 
the old gentleman said that he knew that that was the first 
step; and sooner or later, if that spring is not cold enough, 
that they're going to make him refrigerate it, and he might 
just as well sell the cows now.
    And there will be a certain percentage of farmers that, one 
more regulation is enough. When house lots are--I was just 
talking to a farmer on the seacoast and he just sold house lots 
for $70,000 a quarter acre. I mean, when you're looking at 
that, one more regulation, one more headache, is enough to say, 
``Enough's enough.''
    If we get into citizen litigation, as a farmer, if you're 
on paper worth a million dollars, and a lot of farmers are 
today because of our land values, and there's a possibility 
that your son may get in a fight on a school bus and give 
somebody's other son a bloody nose, and now that person has a 
vendetta against you, that they pick up something in the TMDL 
or AFO-CAFO and sue you, you may lose your operation. That's 
enough to get a lot of fellows to start thinking it's time to 
get out. And I think citizen litigation is probably the biggest 
problem that we, as farmers, see in the AFO-CAFO.
    Senator Smith. Anyone else?
    [No response.]
    Senator Smith. Ms. Girard, what, in your professional 
opinion, science exists today to implement a TMDL strategy or 
plans? As you indicated, you felt that even the EPA proposal 
was not strong enough.
    Do we have the science to be able to implement a plan that 
effectively, I mean, and realistically, do we have that much 
science available to do that?
    Ms. Girard. We're always gathering science. We're always 
finding new things. We're also impacting on our water quality. 
So, I don't use science as a benchmark to stop implementation.
    If you go to the original Clean Water Act, it didn't 
require a standard that you have complete knowledge of the 
science in order to implement TMDLs. It said to maintain margin 
of safety; implement to the best professional judgment that you 
could. So, back in 1972, they were encouraging implementation 
with the information they had at the time. What you've seen in 
this process has been voluntary implementation in many States, 
New England, particularly, who have gone ahead and developed 
BMP's to try to stay ahead of these types of issues.
    One of the biggest issues in this debate has been what 
TMDLs has represented for other States in the Nation, where 
they have not gone through voluntary implementation programs.
    I am particularly concerned about waiting to, hopefully, 
develop what is considered adequate science that you may not be 
able to achieve in a year, 2 years, or 3 years. I don't want to 
see efforts to improve our water quality be sidetracked by 
having that scientific development hung up.
    So, from that prospective, I would much prefer to see the 
standard be implemented. If necessary, when additional science 
is devised, reviewed, and accepted, then amend your standard at 
that point, but do not hold up the implementation of the 
regulatory process until this develops.
    Senator Smith. I'm sorry. I didn't see the gentleman 
standing here. Yes, sir?
    Mr. Kinneth. My name is Robert Kinneth and I own a few 
acres a little north of here, and that's my concern, and that's 
why I'm here.
    I thank you, Senator Smith, for holding the hearing and 
allowing us up here in the north country to have our say. I 
think it's important and I thank you.
    A few years ago, I was part of a committee on the Hubbard 
Brook area. I was an RCD member of the northern four counties 
in New Hampshire at the time. I think there's much to be 
learned there. That review went on for several years. Some of 
the questions were asked 15 years ago that we've been talking 
about today, of the people that were running the area; and, 
physically, you know, getting their hands dirty. I'm certain 
that there is much to be learned from that study. I'm sure that 
data is somewhere.
    I urge you, Senator Smith, to look into that and use that 
for the decisions on this bill and this proposal, and the new 
rules and regulations.
    The comment by the young lady to simply set down rules and 
regulations without understanding the impact of those by a 
fellow that's got a very sore back, because he's worked all of 
his life in trying to make a living, and a very meager living, 
cutting wood, and putting him under a permitting process that 
takes months, is going to drive him in poverty. If that's the 
process, then do it. But I think it's wrong. Thank you.
    Senator Smith. Thank you, sir.
    Yes, sir?
    Mr. Kencht. Senator, my name is Stan Kencht, spelled K-e-n-
c-h-t. I'm from Lancaster, NH. Just following up on your 
question, you asked Scott Mason concerning from a farmer's 
viewpoint what is the worst part of these regulations.
    I would agree with what Scott said; that the citizen 
lawsuit, the potential for a citizen lawsuit is the scariest 
part of the regulation.
    One of the other parts of the CAFO regulation, as I 
understand it, is once you're in violation of any pollution, 
then you come under the definition of a CAFO, regardless of the 
size of your operation. So, if you're like me, and you have 30 
head of beef cattle and you're in violation of something, then, 
you're automatically categorized as a CAFO and subject to 
potential citizen's litigation.
    I would just like to comment. You said that Mr. Fox would 
respond to comments or respond to questions that are part of 
the record. I just have a question.
    I believe that in this public hearing process, the only 
thing that we, as citizens, have to take back with us is the 
credibility of what's spoken to us here. And during part of Mr. 
Fox's remarks, his comment was that he did not believe that the 
CAFO regulations would impact New Hampshire at all.
    Now, Mr. Mason's comments, obviously, contradict that. I 
would just ask Mr. Fox to rectify his statement that they would 
not impact New Hampshire; and then, Mr. Mason, that they would. 
I would ask him to rectify that for the record?
    Senator Smith. He would respond to that and make sure we 
have your address before we leave, so we can get back to you.
    Mr. Kencht. Thank you.
    Senator Smith. Yes, ma'am?
    Ms. Tarker. Edith Tarker. I spent a day on a bus looking 
around Coos County looking at various forest lots. One of your 
staff people was there. I got a little better understanding of 
some of the Federal funding that Mr. Mason was speaking of.
    What is your view, Senator Smith, as to whether we can see 
an increase in the funding of EQIP and some of these other 
alphabetical programs which are designed to help tree farmers/
loggers and the farms here, the dairy farms? There seem to be a 
number of them. And some of them got short-changed in order to 
get the Ice Storm money. It was a cost or a funding shift 
program. In other words, we got a lot more money, but it was 
directed toward Ice Storm damage.
    Now, apparently, there's need for money for building some 
of these manure storage facilities and other practices which 
would be helpful on woodlots.
    Are we apt to be getting more money here in New Hampshire 
for those kinds of helps to tree farmers and to dairy farmers?
    Senator Smith. Well, first of all, let me say that I did 
for the first time--I didn't think I'd ever live to see it--but 
for the first time in a long time, 30 years or so, we're 
beginning to run some surpluses at the Federal Government 
level. I'm hoping that with the surpluses (a) we can give some 
money back to the taxpayers; (b) we can peg down and pay off 
the National Debt, which is about $3.5 trillion. We did make a 
downpayment of a couple hundred paltry billion on that this 
year; but, certainly, we ought to be able to look at programs 
like this, that I would call infrastructure. Infrastructure 
would be environmental enhancement, promoting good environment 
policies, rather than being at the end, the punitive end, the 
fine end, if you will. Rather, the Government should get into 
promoting these practices and grant dollars, in general, in 
those areas, I would be supportive of.
    I think if you look over the past 30 years, the State of 
New Hampshire has been a donor State. Not in everything. We get 
more than we put into the Federal Highway Trust Fund, for 
example; but I believe, that we've been a donor State, in the 
sense that a lot of the States have these huge welfare and 
inner-city problems that New Hampshire doesn't have. We have 
them, but not as serious as others.
    So, I think we have a good, valid reason to make requests 
for this kind. Whether they're revolving loan programs, grants, 
or any type of a process where we could get moneys to help. We 
do this with my bill, which increases from $150 to $750 million 
on the TMDL issue to promote good practices to have a pilot--
several pilot programs around the country, and so forth. So, I 
think that's proactive.
    And I think, respectfully, the area where I disagree with 
Mr. Fox and, perhaps, with Ms. Girard, as well, is that I think 
we all believe that we share those objectives, but I believe 
the best way long term to handle these environmental problems 
is to stop creating more of them. If we constantly have to hold 
a glass under the faucet and the faucet keeps running, we're 
going to run out of glasses pretty soon. I want to shut the 
faucet off and I think the best way to do that is to teach, and 
to help, and work with the landowners. They can teach us a few 
things, I'm sure, and to do the right thing and look to the 
next generation after the next election. It's very easy to say 
that we want to do something immediately to clean up the mess 
that we created that took 200 years to do it. But sometimes, we 
can't do that; and I think we have to be honest about it, and 
say, ``Let's set good policy.'' If it takes grant money, and 
some of the types of programs that you suggested, I'd be all 
for it. I mean, I think we should get our share of it.
    I think it ought to be based, frankly, on good performance 
on how well we are on the steward of the land. I don't think 
somebody who's doing a lousy job in stewarding the land should 
get it, but I think that the States and landowners who do 
should get that help. And I think New Hampshire, frankly, is as 
good as any State in that regard.
    So, unless either of the staff has comments specifically on 
these programs, I'm done.
    At this point, if anyone has any question of any one of the 
panelists who are up here or any panelist who is still here, 
feel free to come up and we'll respond to any question that 
might be asked. Did you have a question?
    Mr. Sullivan. A comment.
    Senator Smith. Yes, sir?
    Mr. Sullivan. Well, thank you, Senator. I just have a quick 
comment. My name is Mark Sullivan and I live in Whitefield. 
I've heard a lot of interesting things here, and what troubles 
me more than anything else is that EPA has an unclear rule, no 
clear concept of what their long-range implications of the 
unclear rule are, and no plan to implement the unclear rule.
    My ending comment is that, to me, this seems to be a 
glaring example that a draft is a horse designed by 
bureaucracy.
    [Laughter.]
    Senator Smith. Well, I would agree with you, because one of 
the things that I have found in all of the environmental laws 
that I've worked with over the past 16 years that I've been in 
Congress, they were all good-intentioned, and many of them were 
very effective, including the Clean Water Act. But I think it's 
important that we do have clarity in these laws. If there's an 
individual out there somewhere who--let's just use the example 
of a farmer--if he is or she is a lousy farmer, who's really 
polluting the environment, has absolutely no concern for the 
land for whatever they're doing, then that person is violating 
the law and that person should be, in my view, brought up short 
for doing it.
     But I don't think we should pass rules or implement rules 
that make everyone criminals; for the same reason we don't want 
to put everybody in jail because somebody commits a crime. And 
so, that's my only concern.
    I think in the long run, it would be nonproductive, and I 
don't want to repeat myself, but I'm trying to look beyond the 
laws of the past which have been very effective. We don't want 
to walk away from those laws, but we can, in my view, down the 
road, stop more problems in the future a lot more quickly if we 
work with landowners, the private stewards, to see to it that 
we don't create more of these problems. I'm afraid that this 
rule, with the greatest respect to those who support it, it's 
going to have the exact opposite effect. I think it's going to 
drive people--not everybody. I mean, Champion lumber company is 
going to be around. I don't think we're going to drive them off 
the land, but we may drive off Tom Thomson or some other small 
woodlot owner or landowner who may not be able to do that, and 
that's my concern. And if we do that, in the long run, we're 
not benefiting the land; we're not getting the results that we 
want. So, I agree with you.
    And now, just step up. Yes, ma'am?
    Ms. Derose. My name is Bonnie Derose, D-e-r-o-s-e. Senator 
Smith, I really appreciate this opportunity. I'm not a farmer. 
I'm not a forester. I'm here as a U.S. citizen who conducts 
their daily life, their daily public life in English and I 
expect the same of others, and I vote.
    I have in my hand some literature which shows great success 
by EPA, clean water, clean air, and to that, I have to say, 
``If it ain't broke, don't fix it.''
    Part of what I think motivates people to design laws, such 
as this--there are too many damn laws, as you've dubbed it--is 
the success that the EPA has already had. This is going to 
affect the life expectancy of the EPA. Historically, in 
Washington, when something is successful, the budget gets cut. 
So, what's the EPA going to do? Let's get more regulations, so 
we can have a longer life; and those more regulations are going 
to cost the taxpayers. This is analogous to the psychologist 
and other ancillary people in public school systems who find 
more and more labels for dysfunctional children to be in 
Special Ed., another black hole.
    There used to be a saying of people holding office, public 
office, whether it be city, State, county, or Federal, that 
they were public servants. The number of laws that are now, 
like this proposed law, punitive and damaging to the citizens, 
have made the citizens of the United States servants to the 
Federal Government, and that's not right.
    There's been a lot of discussion today about where the 
funding for this law is going to come from; and the split of 
60/40, maybe, it's 50/50, maybe, it's 30/70, it all adds up to 
100 percent on the taxpayer. Whether they're paying their State 
to put forth the State's part of it or the Federal taxes to put 
forth the Federal part of it, it still adds up to 100 percent 
for the citizens of the United States.
    To that, I would like to say to the people here in the 
audience, whether you're getting it or giving it, when somebody 
controls your money, they are controlling you. Thank you very 
much.
    Senator Smith. Thank you.
    [Applause.]
    Senator Smith. We are going to continue to take the 
questions for those who wish to ask them. Let me just state, in 
case some people leave, a whole transcript of this hearing, 
including the remarks that all of you have made, will be 
available. It's going to take a little while, but you can get 
it by e-mail to www.senate.gov/epw/. Also, you could write to 
the Environment and Public Works Committee in Washington, DC 
and we'll provide you copies, but it's going to be a while 
before we have a hard copy of it, but it will be available if 
you'd like to have it.
    Also, I want to thank Jeff Rose of my staff and Stacy 
Durgin, both of them who worked the environmental issues here 
in the State; and I know they've been up here on numerous 
occasions working with all of you on these issues, and I 
appreciate their help.
    So, anyway, now, let's just take these questions and then 
we'll wrap up. Let me go over this side, I guess.
    Mr. Balch. My name is Si Balch, spelled S-i B-a-l-c-h. I'm 
chief forester at the Mead Paper Company here in New England. I 
would like to thank you for having the hearing. I think it's a 
great thing to do; so, thank you very much. I live in Wilton, 
ME.
    I've got about 30 years' experience with forest operations 
here in the Northeast; plus, I've worked for a number of 
corporations that have land across the country. I've been 
working in water quality, both at a company level and at a 
State level for, at least, 10 years. I'm on the Advisory 
Council of Water Qualities in the State of Maine. Mead owns 
about 600,000 acres, of which 100,000 is in New Hampshire. The 
rest is in Maine. We are also members of AF&PA, supporting SFI.
    I'm afraid I don't have a lot of faith in the promises of 
the EPA at this point. I would like to say that I think that 
the TMDL part of the program has not been supported as well as 
it should have been over the years, and that lawsuits over the 
past few years have proven that.
    And so, I would encourage the development of the TMDL 
program as originally envisioned. That does not mean that I'm 
encouraging it to include silviculture and other nonpoint 
sources. And I'm fascinated by this magic where a nonpoint 
source suddenly becomes a point source. We are seeing it in 
agriculture.
    Now, we've heard a lot about silviculture. We heard from 
Mr. Fox today a classic divide and conquer. It doesn't apply to 
you in New Hampshire; so, don't worry about it. Forget it. It 
applies--it will apply across the country, and our colleagues 
in the rest of the country will bear the brunt of it.
    Agriculture is fascinating, because, actually, there is a 
law which exempts agriculture from most of this; and, yet, EPA 
has magically said that feed lots suddenly are not agriculture. 
Guess what? Now, they're a point source. So, you're going to 
see this continual subdivision or definition to get where they 
want to go.
    A couple of points. If TMDLs are not based on science, they 
will be indefensible, and they would be back in court; and 
then, your tax dollars and my tax dollars would have been 
wasted on a worthless product and will be further wasted 
defending them in court. And when the EPA goes to court to 
defend its own regulations, that's our tax dollars.
    Your bill, 2417, does go quite a long way to fixing some of 
the problems, and I would like to endorse that. Very simply, 
nonpoint sources should not be implemented into the TMDL 
process. You need to retain the definition of most 
silvicultural operations as nonpoint sources. We heard Mr. Fox 
say that they would follow the intent. The very clear intent of 
Congress in the past has been the silvicultures and nonpoint 
source. Let's honor that.
    I will not bore you with the whole list, but I am going to 
submit it in writing.
    I would like to tell one short story of my experience. One 
of the recent pieces of legislation to the coastal zone 
management, which requires States to develop and enforce the 
BMP's, enforce the BMP's within the coastal zone.
    Well, in the State of Maine, the coastal zone, for some 
reason, is approximately 100 miles from the coast. It's not a 
couple of miles along the coast. It's 100 miles inland. We 
studied it. The State studied it. We submitted a plan that said 
that forestry was not a significant contributor to pollution 
within the coastal zone.
    The EPA came back and said, ``Nice try, but you have to 
leave it in there.''
    So, the business of the State being able to create its own 
program, and say, ``There, we got turned down flat by the EPA'' 
So, I don't have a lot of faith in that process.
    I'd be happy to answer any questions.
    Senator Smith. Thank you very much. Let me make a quick 
request. At the risk of offending anyone, they tell me that we 
were only supposed to have this school until a little after 4 
o'clock. It's 5:20 p.m. We were supposed to give up the school 
here. So, every--anything that you have in writing, we can 
accept as a written record; and, if you could just summarize in 
a minute or two your comments, it would be appreciated so that 
I can get everybody since I promised it.
    Yes, sir?
    Mr. Bonney. Hello. I'm David Bonney. I am a Maine licensed 
forester residing in Newry, ME. I have practiced forestry for 
21 years in the States of Maine, New Hampshire, and New York. I 
am currently employed by Wagner Forest Management, which is 
headquartered in Lyme, NH. Wagner manages large acreages in New 
England, New York, and parts of Canada.
    As a practicing forester, I strongly object to the EPA's 
proposed efforts to redefine forest management activities as a 
point source polluter.
    If this action is allowed, the ability of landowners to 
responsibly manage their land will be adversely impacted. This 
ability to manage forestlands is crucial to the economy 
supported by the management of our forests.
    Landowners currently follow the State and local laws, along 
with implementing Best Management Practices when conducting 
forest management activities. To require the landowners' 
practicing forestry to go through the delay and expense of 
receiving Federal permits, given the effective programs already 
in place, is completely unacceptable.
    These proposed permit requirements threaten the forest 
landowners' already narrow profit margin. These requirements 
would also open the door for other laws and civil lawsuits.
    Landowners faced with not having the opportunity to 
profitably manage their holdings may choose to sell to 
developers.
    This permanent loss of forestland would impact the 
environment to an extent that no forestry activity would ever 
induce.
    I urge that the determination of forest activities as a 
nonpoint source polluter not be reversed. Thank you.
    Senator Smith. Thank you very much, sir.
    Yes, sir?
    Mr. Spalding. My name is Donald Spalding, again, from 
Whitefield. We've heard a lot today about what might happen 
under this proposed rule, but I would like to relate a case 
where it actually did happen in different but very similar 
circumstances.
    It involved Ben Lacy, a small apple juice producer in rural 
western Virginia. He had a NPDES permit, similar to what is 
being proposed here, to discharge wash water from his operation 
into a local stream. He thus had to do quarterly testing of his 
effluent and file the Quarterly Monitoring Reports with the 
State.
    One day, at a time his business was beset with disasters, 
staffers from the Virginia Department of Environmental Quality 
showed up for a routine audit of his reports. Because of his 
troubles, he told them to come back another time. Instead, they 
returned with a platoon of FBI and police and seized all his 
records.
    They found that over several years, he had reported a few 
incorrect numbers, mostly in advertently. The Virginia attorney 
general wouldn't prosecute, nor would the area Federal grand 
jury indict, but the intrepid Feds. shopped around until they 
found one grand jury that would.
    As a result, he was taken to Federal court, convicted on 
eight counts of ``making false statements,'' and was facing 24 
years in jail and $2 million in fines. That is, until the judge 
in the case discovered that your government and mine had 
suborned testimony from the chief witness against him, a 
disgruntled former employee, and threw the case out. And at no 
time in any of this was there any question of illegal pollution 
or exceeding TMDLs. In fact, a local environmentalist group 
tried to testify on his behalf.
    Senator Smith. Thank you.
    Yes, sir?
    Mr. Cohen. My name is Nick Cohen and I'm from Plainfield, 
NH. I represent myself, as well as the Sierra Club and a number 
of other organizations working here in New Hampshire 
maintaining trails.
    Since New Hampshire is better at implementing Best 
Management Practices, according to what we see as the condition 
of our waters on a national basis, the economic competitiveness 
of New Hampshire timber would actually benefit from more 
stringent Federal regulations, because that will equalize the 
expenses devoted to environmental protection by all timber 
producers throughout the Nation currently; because we, in 
effect, do a better job without spending more, and it puts us 
at a competitive disadvantage. So, we could certainly--I think 
we're looking at something that would improve our position.
    The economic pressure of New Hampshire and worldwide 
forests will certainly increase dramatically in the future; 
especially, since the world is developing a great demand for 
timber worldwide. And it's important to have regulations in 
place now to provide additional protection for the environment, 
which might be very difficult to obtain in the future.
    Also, I see as I walk over different areas of the State 
that not all New Hampshire private timber owners use good 
practices. I, by the way, do timber management on my own land. 
And occasionally, we come across areas which have been clear-
cut. Very badly managed, as far as soil conservation is 
concerned. So, there may be some need for regulations in the 
future on that basis.
    I've heard mentioned the 100-year planning basis for 
timber. I think you've got to start thinking in terms of 
thousands of millions of years; especially, if we're going to 
be living here that long, because it's going to be on that 
scale that we have to take care of this planet.
    Then, on nonpoint pollution, which is the last thing I want 
to mention here. Eventually, nonpoint source pollution 
manifests point source pollution when it collects, you know, in 
a waterway, or something like that. So, it's all part of the 
same pollution problem. And I don't think that by changing it, 
the designation from one to another, or arguing about it, that 
you can successfully exempt forestry or agriculture from the 
total picture. It's just more difficult to get a handle on, and 
it might be that it's easy to identify poor practice by finding 
a point where you can identify a point source pollution and 
associate it with a particular operation, as far as 
legislation's concerned.
    So, I think in the future, you're going to find that it 
doesn't matter what type of pollution you're talking about. 
It's all going to come under the same kind of regulation. Thank 
you.
    Senator Smith. Thank you very much.
    Yes, ma'am?
    Ms. Packer. Thank you, Senator. My name is Sara Packer. I'm 
a forester with Wagner Forest Management out of northern 
Vermont. I'm an active member of the Society of American 
Foresters and I serve on boards of both Vermont Sustainable 
Forestry Initiative and the Vermont Woodlands Association.
    I share with many others in this room a strong commitment 
to the responsible management and protection of our natural 
resources, and I do not believe that an expanded Federal 
regulation is necessary to meet the goal of achieving fishable 
and swimmable waters.
    Silvicultural activities have been exempt from a Federal 
permitting process since the original Clean Water Act and 
multiple State laws and programs, along with various voluntary 
initiatives and educational programs, have proven successful in 
addressing the protection of water quality on forest management 
operations.
    Our ability to own and responsibly manage forestland is 
critical to the environmental and economic health of this 
region. Requiring landowners to go through the delay and 
expense of receiving a Federal discharge permit will, 
undoubtedly, threaten their ability to efficiently and 
profitably manage forestland, and many landowners, who have 
helped to maintain and protect our open space and working 
landscape, may choose to sell their land to developers.
    It is clear, that the permanent loss of this forestland 
poses a far greater environmental threat than any forest 
management activity ever could. Thank you.
    Senator Smith. Thank you very much, ma'am.
    Let me again repeat. If you can, to be as brief as 
possible, so we cannot get in trouble with the school here.
    Yes, sir?
    Mr. Gorham. I'm Frank Benny Gorham. I'm a beneficiary of 
Broad Acres Trust, land of 500 acres; land that's been in the 
family for over 150 years, and I was in forestry 64 years 
before they even thought of--before the White National Forest 
was created. We are very concerned.
    Mother Nature takes more precipitous actions than the 
cutting and harvesting of trees. Now, I'm not talking just 
about the Ice Storm.
    Just last year, last fall, there was a horrendous southwind 
that damaged several hundred beautiful trees and blew them over 
and uprooted them. And everywhere there's streams, and it's 
going to take the dirt and everything from the uprooted trees 
and wash it down to someplace, who knows where? And there's 
probably going to be a point source pollution done by Mother 
Nature.
    And the year before that, it was on the northern slope of 
Mt. Madison, the wind blew in the opposite direction; blew 
trees directly over all of the hiking trails that went across 
our land. We cleared those. And am I going to get permission to 
clear a tree that Mother Nature blew down? How long is that 
going to take? Those kinds of things are what concern us.
    One of the things that we are doing is to have a 
conservation easement on the land abutting the National Forest 
that's in the family land; and, in fact, next Tuesday, the 
White--Society of Protection Management Forest people are 
coming with us. And I think that when you see the stewardship 
of the land that has been in the family this long, and it 
doesn't have to have any Federal protection in order to survive 
and to be equally good or better than our adjoining White 
Mountain National Forest.
    And I thank you for giving me the opportunity. I wrote you 
a particular story on the stewardship of that land, and I hope 
you read it on the way back just for your entertainment. Thank 
you.
    Senator Smith. Thank you very much.
    Yes, sir?
    Mr. Akillion. Hi, Senator Smith. I'm Rich Akillion from the 
New Hampshire Citizens for a Sound Economy. In the spirit of 
your 2-minute rule, I will submit our comments----
    Senator Smith. I appreciate that.
    Mr. Akillion [continuing]. And I appreciate the opportunity 
to submit them by Friday.
    Three quick points. First is I, and our members, believe 
that EPA has overstepped its authority here. Our Congress makes 
laws; and EPA, they help promulgate rules. Their interpretation 
of treating some nonpoint sources as a point source, I believe, 
is their overstepping of their authority.
    Second, the threat of lawsuits is very real to Mr. Mason, 
in his comments. I think that's a real-life story and I think 
to us as citizens, it could be challenged. I could be wrong, 
but I believe our States are open to lawsuits if they do not 
enforce TMDLs if they are implemented. That's a cost borne by 
all of us.
    And finally, on the limits of sound science, I see sound 
science as updated and reliable information; and before we 
charge it to something, a new foray, if you will, I think the 
most reliable information, and the impact to us, and the cost 
associated are very important. I thank you for the opportunity 
to speak here in New Hampshire. Thank you.
    Senator Smith. Thank you, Mr. Akillion.
    Yes, sir?
    Mr. Bogeu. My name is Doug Bogeu. I'm with Clean Water 
Action; and I do want to state again for the record, my 
organization was not invited to participate in this hearing, 
and neither were many other environmental, public health, and 
public interest organizations throughout the State. And we 
know, Senator Smith, you have our address, because we attended 
your gathering a few weeks ago, and we appreciated that 
opportunity. But, you know, frankly, it was difficult to find 
out even that this hearing was happening; where it was 
happening. We only really found out this past week. And I would 
submit that while some of the people here deserve to have their 
concerns here, so, too, do the people that live downstream and 
people that are effected by the pollution that we're trying to 
address with this issue.
    I would like to ask or request whether you would hold 
another hearing in some other location? You know, hopefully, in 
New Hampshire; but, you know, somewhere in New England where 
people are being directly affected by the pollution that this--
these rules are meant to address. And really, it plays where a 
larger cross-section of the population can reasonably attend. 
Not everybody's willing to drive 2 or 3 hours on a Saturday to 
be here. So, I would like to make that request. I know it's 
difficult to set up these hearings, but we do feel this issue 
is so important that it does a greater hearing and more 
opportunity for the public to speak out on it. Not to the issue 
at hand. I mean this is basically about clean water. The 
fundamental issue here is protecting our water, our drinking 
water, our other water resources, and those that are needed for 
the environment.
    And, you know, as Miss Girard tabulated earlier, there have 
been numerous deadlines that have been missed. This issue has 
been around for a long time.
    Senator, you asked earlier, ``What's the urgency?'' Well, I 
say, ``Well, for 28 years of inattention to this issue is the 
urgency.'' People are dying for clean water. And I don't mean 
that just, you know, rhetorically. People are dying because 
they are not getting safe drinking water because of 
contaminants that are in their water, and a good proportion of 
those contaminants are coming from nonpoint source pollution, 
not necessarily from silviculture or agriculture, even but from 
many different sources, and those do need to be addressed. And 
we cannot delay another 5 years, another 10 years and study, 
study, study. That's what we've been hearing for 30 years. OK, 
this was written into the original law and it needs to be 
implemented. You know, this is also not just a State law. This 
is not a New England law.
    You know, yes, the problem may not be so bad and New 
England may be in much better shape in regard to these 
pollution problems than other regions; but, again, we should 
not be dictating to the rest of the country what they should be 
doing about their water problems. It needs to be addressed on 
the Federal level.
    It's quite clear, the Federal Government has been unwilling 
to address it for 30 years now. And some States want to do 
more; some of them don't. But they all need to be held to the 
same standard. So, we do feel this really needs to go forward.
    I would just like to say to the people that have come here 
today, I would hope that you, listening to all sorts of things 
you heard from all the different panelists and other 
commenters, that you would feel some resentment that you've had 
to take up a whole afternoon on a beautiful spring Saturday to 
address, basically, a nonissue; and nonissue is not the TMDL 
rules. It's not how we're going to address getting cleaner 
water.
    The issue--the nonissue is that this is going to have a 
significant effect on your livelihood; and I hope that you've 
caught by now that there have been numerous pieces of 
misinformation that have been spread by the forest products 
industry and others. I picked up this flier, as many of you 
have probably seen it, and there's one lie after another; and I 
really just have to say that you've got to listen to the facts. 
Don't just take their word for it. I know you don't trust the 
Government. We don't trust them, either. You know, we've got 
plenty of gripes with the EPA and other Federal and State 
agencies, but the fact is that this is not as bad as some of 
the people have tried to portray it as. And I hope that you're 
not willing to be manipulated and duped by all the special 
interests people, particularly, multinational corporate 
interests that want to see these Federal regulations sunk. 
That's what we've been dealing with for 30 years, and you've 
got to understand that there's a much bigger issue here, and 
there are lots of stakes. So, that's, really, just what I 
wanted to say, and thank you for your time.
    Senator Smith. Thank you.
    Yes, sir?
    Mr. Berti. Thank you, Senator. My name is Robert Berti, B-
e-r-t-i. I am a Selectman from the Town of Rumney. I'm a 
practicing forester, but I don't want to talk to the issue of 
forestry.
    I've been a Selectman going on 18 years; and over that 
period of time, I've seen the eroding of control at the local 
level, from the State and from the Federal; and instead of 
government working from the bottom up, we're getting into a 
relationship of government from the top down. And I think 
that's a very dangerous precedent to be set.
    I know it's sort of a boring reading, but I would encourage 
every Federal agency and person working in the Federal 
Government to read portions of the Federalists Papers, who were 
basically written by people who were the Framers of our 
Constitution. And very early on, they were concerned about a 
very strong Federal Government taking over from what is legally 
and rightfully State responsibilities.
    And I would just suggest that the issue here isn't nonpoint 
or point pollution. It's really the encroachment of vast 
bureaucracies, and I'm not a conservative, but I do think that 
the Federal Government is encroaching ever so much on our daily 
lives in areas they don't have the right and the constitutional 
right to do that.
    And Senator Smith very, very early on today made a point of 
the King's Pine, and the King's Spruce, and also, the King's 
Oak. I just hope we don't become where it's the EPA's Maples, 
and Birches, and Pines.
    Senator Smith. Thank you very much.
    Yes, sir?
    Mr. Saird. Thank you, Senator. My name is Bill Saird and 
I'm chairman of the First Policy Address Force for the 
Associated Industry of Vermont, and it's good to see you again.
    Senator Smith. Nice to see you.
    Mr. Saird. In contrast to the earlier speaker, I want to 
clarify the record here that this has been an open hearing; and 
anybody who's attended has had the opportunity to speak.
    Senator Smith. Well, I'll just say to the gentleman who 
said that had two opportunities to speak.
    Mr. Saird. That's true.
    I would further add that it is a shame that we had to take 
this afternoon to take up a subject that shouldn't have come up 
at all. It really has been well established, I think on all 
sides, that this is a solution looking for a problem. But I 
would submit, it's a solution in the form of a sledgehammer 
trying to pound in a thumbnail. And in so doing, it's 
destroying the furniture that's being held together by that 
thumbnail.
    The people who have created this environment, it is so 
evident by so many, are decent, hardworking, private property 
owners, Americans. And if this was so much in jeopardy, why are 
people so afraid that something's going to happen to it? Why 
are people so afraid? Why do people on one hand compliment all 
the wildlife, habitat that's been created, the recreational 
beauty and scenic beauty; and on the other hand, not trust the 
people who have done the job in creating it? I think, that is 
what I think is at issue today.
    The point has been made earlier that implicit in this 
regulation is the assumption and the message that the people in 
the local governments and the State governments can't be 
trusted to take care of their own environments. And also admit 
to you that nobody cares more about the environment than the 
people who live in the local areas, who earn their living here, 
and who will provide their local government. And they certainly 
have more common sense, and more flexibility, and more capacity 
to manage that environment well than anybody from Washington.
    Now, what do I mean when I say who can I trust from our 
Federal Government? Well, we have heard today the very careful 
use of language. You heard the EPA say, ``Well, we have no 
intention of regulating nonpoint sources,'' but they forgot to 
say that they're going to call parts of agriculture and parts 
of forestry point sources. That trend will increase.
    Now, who should be distrusting or mistrusting whom? There's 
three examples that we have to go by in Vermont of where we can 
decide who deserves the trust and who doesn't.
    Our National Forest had built into the original law the 
provision that any local Select Board had to approve an 
acquisition before that acquisition could go through by the 
National Forest. After 70 years, that was just thrown out the 
window by the National Forest.
    When the Silvio Conte Refuge was being created, we were 
assured over and over again, verbally, just like we were 
assured verbally today, that that would not be a land 
acquisition program. And yet, last year, 28,000 acres were 
purchased by the Federal Government.
    Now, the Wetland rules are an even better example, because 
that's an EPA-administered program. We were assured in Vermont 
that that would be State-run, State-governed, and the EPA would 
basically stay out of it. But what really happened after a 
period of time, when the State did not do what the EPA wanted, 
the EPA made it very clear that if they did not conform, if 
they did not bend to the will of the EPA, the EPA was going to 
take over the program. And that's what's going to happen in 
this program.
    Now, they may try and back people up by saying nothing's 
going to happen for 5 years. But, eventually, the time will 
come where the EPA will govern forestry in our Nation if we 
allow this rule to go through.
    Now, the wording is: You have nothing to worry about, as 
long as you've got an improved plan. You have nothing to worry 
about, as long as you have an effective plan. Well, who's going 
to decide whether it's effective or approved? It's going to be 
the Federal Government.
    And so, when those definitions change and they make it so 
that the State plan is not effective by their terms or not 
approved by their terms, then you will have to have Federal 
permits. And these are just some of the reasons why I think we 
need to oppose this rule.
    Frankly, you've asked a couple of questions over and over 
again: Why is it that this rule is being proposed when nobody 
says it's necessary? It's because the command-and-control 
mentality can't stand the idea that a free person somewhere, 
someplace, is making a decision without Federal permits.
    And why the rush? Why do you need it done so quickly? 
Because they want to get the rule in place before the Clinton/
Gore administration comes to an end.
    I hope you'll do everything in your power to stop this 
awful rule from being imposed, so that the people, who have 
created this beautiful place and worked so hard to do so, can 
remain strong, free, self-reliant, and independent. Thank you 
very much.
    [Applause.]
    Senator Smith. Yes, sir?
    Mr. Brusick. Thank you, Senator, for the opportunity. My 
name is Brendan Brusick, and I live in Columbia, NH on Simms 
Stream; and I'm one of the people that live downstream, and I'm 
here to tell you only the facts.
    I live in the base of Simms Stream just before it enters 
the big Connecticut River. The watersheds have been heavily 
logged for hundreds of years. Some of this, in recent years, 
it's been done by some of the so-called bad actors. I live 
there; I swim there; I fish there; and I hunt there; and I 
drink the water in this watershed, and so does my family.
    Simms Stream is beautiful. It's crystal clear and it's due 
to the work that the State agencies have done to enforce the 
laws and keep that water clear. We don't need any TMDL to tell 
us how to keep that water clean. Thank you.
    Senator Smith. Thank you very much.
    [Applause.]
    Senator Smith. OK, last question.
    Mr. Thomson. Senator Smith, I have a question for Chuck 
Fox, but I'm going to mail that to him as long as the hearing 
will be open until next Friday; is that correct?
    Senator Smith. Yes, we'll keep it open for comments.
    Mr. Thomson. Just one personal comment I'd like to make for 
myself and our families, but also, for the national tree 
farmers. I'd like to thank you for having this field hearing 
and the good work that you do, and I thank you.
    Senator Smith. Let me also thank our sound man over there, 
Bob Molloy. Every microphone worked, and that doesn't happen 
very often in appearances around the country, Bob; so, thank 
you very much for your patience. And I know we went a lot 
longer than we were supposed to and I appreciate it.
    And, Janet Grant, thank you. That's a tough job that you 
have to get all this stuff down. I don't know how you do it, 
but thank you.
    Let me also say to the brave souls that have stayed to the 
end, thank you very much for your patience and we appreciate 
it.
    As you know, the EPA has said that they would finalize the 
rule by June 30; and assuming that if they do that, unless some 
intervening action is taken one way or the other, or modified, 
that will happen, I would assume, on June 30.
    There are some other proposals out there, other than the 
legislation that I've introduced, but we're going to be working 
on this thing all the way through until June 30 to see if we 
can come up with some other resolution, not necessarily my 
specific legislation, but just something that, perhaps, works a 
little better, and we'll try--I can't make commitments I can't 
keep, but we'll see what happens.
    But let me also thank all of the panelists who were here 
today for being here. It was a wonderful opportunity for me to 
hear from everyone, and with a lot of different views, and I'm 
grateful.
    As somebody said earlier, we ought to have more hearings 
out in the field, and I agree with that. We can get a lot more 
information from real people that way, I think.
    So, thank you very much again; and, at this point, the 
hearing is adjourned.
    [Applause.]
    [Whereupon, at 5:43 p.m., the committee was adjourned, to 
reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
      Statement of Hon. Bob Smith, U.S. Senator from the State of 
                             New Hampshire
    Good Morning. It is a pleasure and very appropriate that we are 
here today in the beautiful White Mountains of New Hampshire to discuss 
the environment. The 780,000 acres of the White Mountains and the 
extensive private forests around it are home to hundreds of miles of 
pristine waters. In fact, water covers 115,000 acres in New Hampshire, 
everything from small ponds to Lake Winnipesaukee, which is twenty-two 
miles long and eight miles wide. Each year, over a million summer 
visitors, come to New Hampshire to enjoy our mountains, lakes and 
seashore scenery. The forests of pine, spruce and hard wood add beauty 
to the landscape and wealth to the land.
    Much of this area has historical significance, such as the 
Connecticut River, were ``white-water men'' risked their lives to 
convey lumber logs from the northern region to the manufacturing 
centers. The 2,155-mile long Appalachian trail, which stretches along 
the Appalachian Mountain chain from Georgia to Maine, winds through the 
heart of the White Mountains and traverses many of New Hampshire's 
highest mountains. As a Senator of New Hampshire and Chairman of the 
Environment and Public Works Committee, it is my privilege to protect 
these resources not only for us here today but for generations to come.
    The residents of New Hampshire can be proud of what our timber 
companies, tree farmers, and farmers are doing today to preserve our 
natural resources for future generations. They are good stewards of the 
land.
    I could go on forever about the vast resources and people of New 
Hampshire, but that's not what all of you are here today to hear. The 
purpose of this hearing is to further examine the Environmental 
Protection Agency's proposed rule on Total Maximum Daily Loads (TMDLs).
    Since EPA released this proposed rule last August, I have spent 
considerable time talking with New Hampshire stakeholders, Senators, 
and State and local officials across the country, as well as many of 
you who attended the recent University of New Hampshire environmental 
symposium, about the impacts this rule would have if it were finalized. 
A common question is always asked of me: Why is EPA pushing this very 
controversial rule through the process so quickly? Unfortunately, I do 
not have the answer to that question; and that makes my job very 
difficult. I hope that Assistant Administrator Chuck Fox, who will be 
testifying this afternoon, will be able to provide an answer.
    EPA's obvious desire to rush to judgment on this rule is especially 
frustrating when you consider that Administrator Browner has admitted 
that EPA failed in drafting a clear rule; Mr. Fox himself has suggested 
that substantial changes to the rule will be necessary in a letter to 
me; and almost every industry has expressed strong concerns about this 
rule. Notwithstanding all of that, EPA is rushing to finalize this 
rule. It is clear to me that it would be far more appropriate for EPA 
to slow the process down and perhaps reissue a newly drafted proposed 
rule so to provide all stakeholders an opportunity to comment, not just 
those that are represented by lobbyists in Washington, D.C. EPA should 
listen to all of those concerns and take a ``time out.''
    While I may not understand the thought process at EPA, I do know 
that the silviculture industry of this State should be commended for 
their stewardship and work to protect the environment. Even the EPA 
acknowledges this: Mr. Manfredonia of Region I EPA stated that 
``silviculture and forestry operations are not, to the best of his 
knowledge and data, an issue for water quality.''
    Yet we are faced with a proposed rulemaking that could have a 
dramatic impact on the people who depend on the land and water for 
their livelihoods, regulating them for the first time under the Federal 
permit program of the Clean Water Act. This rule would not only impact 
large industries, but it could also have a dramatic impact on small 
family forestry and agriculture operations, where the margins are so 
thin, the survival of these businesses could be in jeopardy. It would 
impact people like Tom Thomson, a small family tree farmer that was 
named the 1997 Outstanding Northeastern tree farmer of the year. Tom 
has fought through the adversity of the ice storm to continue a family 
business. We should be proud of his stewardship and conservation of 
open space and not allow Federal permitting of his land. What have 
people like Tom Thomson done to their land that would lead EPA to 
believe they ought to have a permit to cut down a tree?
    The EPA claims the States will be implementing this program. But in 
New Hampshire we do not have delegated authority to issue permits. So 
we fall into that category EPA claims is a ``rare'' situation, with EPA 
responsible for issuing the permits in New Hampshire.
    In order to address the many concerns I have heard on the 
implementation of the existing regulations and the concerns with the 
proposed rule, I have introduced along with Senator Crapo and 16 other 
co-sponsors, S. 2417 the ``Water Pollution Program Enhancement Act of 
2000.''
    The purpose of this legislation is to take care of three concerns 
that have been outlined in the hearings we have held over the last 2 
months, as well as comments made at the New Hampshire environmental 
symposium a few weeks ago.
    First, the States are in great need of increased funding to 
implement nonpoint source programs, conduct monitoring to develop 
scientifically based water quality programs, issue permits and list 
waters under existing requirements.
    Second, there are a lot of unanswered questions about the costs and 
scientific basis underlying the implementation of TMDLS, as well as a 
host of alternative programs or mechanisms that exist at the State 
level that may be more effective to accomplish the same goals of the 
TMDL program. These questions need to be answered before we mandate 
more requirements on the States and private sector. This legislation 
directs the National Academy of Science (NAS) to answer these 
questions.
    Third, we need to take a time out, analyze these unanswered 
questions, continue to learn from the existing TMDL regulatory program, 
and then reissue the proposed TMDL rulemaking, taking into account the 
NAS study.
    The environment of this great State and the Country is very 
important to me, but so is sound science. I look forward to listening 
and learning from all of you today who have to work within this 
regulatory program for years to come. Thank you.
                               __________
  Statement of Harry T. Stewart, P.E., Director, Water Division, New 
             Hampshire Department of Environmental Services
    Mr. Chairman, members of the committee, I am Harry Stewart, 
Director of the Water Division, New Hampshire Department of 
Environmental Services.
    Thank you for the opportunity to testify before the Senate 
Committee on Environment and Public Works on the United States 
Environmental Protection Agency's Proposed TMDL regulations.
    The New Hampshire Department of Environmental Services (NHDES) and 
other State environmental agencies across the country were highly 
critical of the Environmental Protection Agency's proposed TMDL 
regulations dated August 23, 1999. The regulated community and the 
public were also highly critical, as demonstrated by the approximately 
30,000 comments received by EPA on the proposed rule. NHDES viewed 
these proposed regulations as being too burdensome on both the State 
environmental agencies and the regulated community, and as too 
prescriptive, removing the flexibility of States to tailor programs to 
State-specific priorities and needs. Specific comments were contained 
in our letter dated January 20, 2000 to EPA. We also supported, and 
participated in the development of, the extensive comments to EPA by 
the New England Interstate Water Pollution Control Commission (NEIWPCC) 
and the Association of State and Interstate Water Pollution Control 
Administrators (ASWIPCA).
    Chuck Fox, Assistant Administrator for Water at EPA, should be 
commended for his efforts to be responsive to these concerns. In 
letters dated April 5, 2000 to key senators and Congressmen, including 
Senator Smith, and the ``Joint Statement of the Department of 
Agriculture and the Environmental Protection Agency Addressing 
Agricultural and Silvicultural Issues Within EPA Revisions to TMDL and 
NPDES Rules'' dated May 1, 2000, Assistant Administrator Fox has 
indicated that numerous changes in the proposed rule which will address 
a high percentage of the issues raised by States and other parties.
    For example, the April 5, 2000 letter included a table, ``Key 
Elements of the Expected Final Regulation for Restoring America's 
Polluted Waters''. These proposed revisions go a long way to address 
the concerns of the States by providing greater flexibility to tailor 
TMDL approaches to State-specific needs. Specifically:
     Four years are provided for States to develop lists of 
polluted waters rather than 2 years. Although we would prefer, and the 
States recommended, a 5-year cycle, a 4-year cycle is a significant 
improvement and is reasonable. This means we can focus our limited 
resources on activities to improve water quality, rather than 
developing lists.
     States are provided more flexibility, such as allowing 15 
years for TMDL development for impaired waters, than in the original 
proposal.
     ``Threatened-waters'' was dropped as a category. This was 
an ambiguous category which we believe would have increased the listed 
waters with no environmental or program benefit.
     A proposed public petition process was dropped, 
eliminating a procedure by which citizens could potentially have 
bypassed State processes and unnecessarily drain State resources to 
deal with these petitions.
     The requirement for pollution offsets was eliminated. This 
also would have been a very difficult program for the States to 
implement.
    The Statement of May 1, 2000 from DOA and EPA in part states: ``In 
States that develop and maintain forestry BMP programs that are 
recognized by EPA as adequate (i.e., generally consistent win this 
guidance) will have no exposure to NPDES permit requirements. . . . The 
idea is that forest operators in States with approved programs will 
know what is expected of them, what BMPs are effective in reducing 
pollution and need to be implemented.'' This indicates a very positive 
step to address the forestry concerns and suggests an approach that is 
likely to work in New Hampshire. Under any reasonable criteria, New 
Hampshire has an ``adequate'' program in place which includes three 
critical elements:
     Implementation of best management practices. It is 
important to note that a manual has been developed by the New Hampshire 
Department of Resources and Economic Development (NHDRED), in 
cooperation with NHDES and the University of New Hampshire, entitled 
``Best Management Practices for Erosion Control and Timber Harvesting 
Operations in New Hampshire'' dated February 2000. As other States seek 
to implement BMPs, this manual is likely to become a model document, at 
the national level, for concisely providing practical information on 
BMPs on timber harvesting to operators and the public.
     Training and outreach. NHDES, NHDRED-Division of Forests 
and Lands, and nonprofit organizations like the New Hampshire 
Timberland Owners Association and the Society for the Protection of New 
Hampshire Forests jointly provide training on an ongoing basis on BMP 
implementation and over environmental protection considerations.
     Compliance and enforcement. In New Hampshire, when water 
quality problems caused by forestry operations are identified, they are 
typically short term and are corrected through the joint efforts of 
NHDRED and NHDES. These efforts virtually always first include 
compliance assistance and, when necessary, enforcement wader State 
statutory authorities. In fact, we expect that site-specific water 
quality problems would virtually always be addressed under State 
programs long before they rise to the threshold for Federal 
involvement, such as long-term water quality impairment.
    Although we are pleased that EPA has been very responsive to the 
concerns 
expressed by the States and other parties, we have not yet had an 
opportunity to examine the actual wording of proposed revisions address 
these concerns. Consequently, we urge EPA to publish the actual 
language of proposed changes for public review as soon as possible, 
especially for the forestry provisions, to allow evaluation and comment 
on the changes prior to final promulgation. This approach is 
appropriate considering the magnitude of the TEAL comments and expected 
changes.
    Finally, please note that, as in most other States, New Hampshire's 
TMDL program is significantly underfunded. Additional Federal funding 
to support State development of TMDLs is needed, irrespective of the 
results of the EPA rulemaking.
    Additional funding is proposed in both Senate Bill 2411 and the 
President's proposed budget. The President's budget contains $45 
million for Federal Fiscal Year 2001, which translates into just over 
$200,000 for New Hampshire to assist with TMDL development. We have 
several concerns with the proposed funding in the President's budget:
     This additional funding is a good start but is not 
adequate to sustain an effective long-term TMDL program in New 
Hampshire. NHDES has estimated that an additional $420,000 per year for 
staffing and analytical costs is necessary for New Hampshire to support 
the TMDL program. The President's proposed budget contains half of this 
amount.
     Due to the way a new EPA Formula for the Section 106 
moneys work, if the appropriation were to increase by $5 million to $50 
million, ALL of the extra funds would go to New Hampshire, Vermont, and 
a number of other smaller States--the larger States have already gotten 
their share. To illustrate, with an increase of $5 million, New 
Hampshire would receive about an additional $110,000, Vermont an 
additional $175,000 and Rhode Island an additional $320,000 for a 50 
percent increase in 106 funds to these States. Due to the way EPA's new 
106 formula works, at $45 million, the larger States will have already 
gotten increases to 50 percent and will receive no more additional 
funds until the smaller States have ``caught up''.
    Under the President's fiscal year 2001 budget proposal, the State 
match requirements for the proposed new TMDL funding are too rigid to 
enable New Hampshire to access all of this money. Based on EPA draft 
guidance, these ``strings'' include:
    (1) A 60/40 split between Federal and State costs for the ``new'' 
Section 106 money (that is, 3 ``Federal'' dollars for every 2 ``State'' 
dollars). This is an extraordinary match requirement that we believe 
should be reduced to a 90/10 split between Federal and State dollars.
    (2) An extremely narrow definition of ``State match'', relative to 
traditional practices, is proposed. New Hampshire currently faces 
significant State budget shortfalls caused by problems with education 
funding. Consequently, the potential for ``new'' State money to expand 
the TMDL program is virtually nonexistent during this period. We need 
flexibility consistent with current practice.
    These proposed requirements should be changed if the goal is to 
have these funds rapidly and effectively utilized by all States, not 
just those with surplus State funds available to meet rigid match 
requirements.
    We urge you to provide additional funding for water quality 
analysis and TMDL development with minimum match requirements and 
maximum flexibility on how the Federal funds may be matched. This is 
the only way to ensure that the funds will be fully utilized by all 
States to make significant progress toward the goals of the Clean Water 
Act.
    Thank you for the opportunity to testify on the proposed TMDL 
regulation. We look forward to working with Congress and the EPA to 
ensure that our nations' waters are protected and improved while 
ensuring that our forest products industry and other traditional 
activities can continue to flourish in an appropriate and responsible 
way.
                               __________
   Statement of Philip A. Bryce, Director, New Hampshire Division of 
                            Forests & Lands
    Thank you for the opportunity to testify regarding the 
Environmental Protection Agency's (EPA) proposed Total Maximum Daily 
Load (TMDL) rule and the National Pollutant Discharge Elimination 
(NPDES) Permit System.
    The mission of my agency is to protect and promote the values 
provided by trees and forests. Forests and Lands is responsible by 
statute for ``all matters pertaining to forestry, forest management, 
and forestlands within the jurisdiction of the State.'' This includes 
acquisition and management of State-owned forestlands, forest fire 
protection, insect and disease control, the State forest nursery, the 
natural heritage inventory program, natural resource education and 
forest policy.
    The Division of Forests and Lands is also the primary State agency 
responsible for the enforcement of forestry laws, including, in 
cooperation with the NH Department of Environmental Services, those 
protecting water quality. Law enforcement officers from my agency 
conduct onsite inspections of logging operations to ensure compliance 
with water quality and other timber harvesting laws.
    The State also provides training in compliance with forestry laws 
and implementation of Best Management Practices through the 
Professional Logger Program. Recommended timber harvesting practices 
for controlling soil erosion have been around in New Hampshire for at 
least 20 years. Implementation of these practices has been a critical 
component in reducing the impacts of logging on water quality.
    As a State forester, I am strongly opposed to the proposed rules on 
three major grounds:
    1. The proposal is a major departure from the historical 
interpretation and implementation of the Clean Water Act, and is not 
supported by statutory authority.
    2. The proposal ignores the relatively minor contribution made by 
forest management to water quality problems nationwide, and threatens 
to disrupt the effective approach taken by the State Foresters and our 
Federal partners to achieve these results.
    3. The proposal will be extraordinarily difficult to implement in 
practice and will result in drastically higher costs for both States 
that must develop TMDL's and the landowners and operators who might 
become subject to NPDES permitting requirements.
    As stated earlier this year in my comments to the EPA, the proposed 
rules will do little, if anything, to improve water quality in the 
State of New Hampshire. It is a poor allocation of collective public 
and private resources to protect the environment. It is our experience 
that those few individuals who have little regard for the law will 
ignore any new permitting process. For the rest, a permitting process 
will divert energy away from other efforts that have a proven track 
record of success in protecting the environment, particularly the 
implementation of BMP's.
    New Hampshire has a long and proud tradition of protecting personal 
and property rights while working collaboratively to resolve public 
issues and problems. I have characterized this as a balanced and 
collective form of forestry leadership. The top down approach 
promulgated by EPA is a threat to maintaining that spirit of 
collaboration between the private and public sector that has worked so 
well here in New Hampshire to address natural resource challenges.
    An outstanding example of that spirit is Good Forestry in the 
Granite State. Not only does it have a chapter on water quality, but it 
incorporates a complete copy of the State's BMP's recognizing even 
further the importance we place in New Hampshire on protecting our 
water resources.
    As we work to address environmental protection and forest 
stewardship through constructive dialog, a broad spectrum of interests, 
from representatives of the forest products industry to the staunchest 
critics of that industry, have identified more than once, the need for 
additional education, monitoring, and enforcement of existing laws.
    For example, the legislatively mandated New Hampshire Forest 
Resources Plan recommends that we develop and implement forest 
practices regulations under the following guidelines: scientific 
information shows a clear need; voluntary measures are in place; 
education and incentives have not changed behavior; and monitoring 
shows that current practices are not sustainable.
    The Plan also recommends that the State ``Provide consistent, swift 
and equitable enforcement of forestry laws'' and that we ``Secure 
funding for five additional (Forest) Ranger positions.''
    In addition, the final report of the Forest Liquidation Study 
Committee to the State's Forest Advisory Board concluded that, with 
respect to improving forest practices, we need increased efforts to 
educate individuals about sound forest management, better data 
gathering on the level and harvesting activity within the State, and 
enhanced enforcement of existing laws. What we really need are the 
resources to carry out these recommendations.
    I recognize that the EPA has been working to address issues 
surrounding the proposed rules. There remains a great deal of 
uncertainty as to the degree to which the EPA is responding to these 
issues. Questions remain:
    1. Do these rules lead to the improvement of water quality beyond 
the capability of existing State laws?
    2. Is EPA considering forestry and silviculture as a non-point 
pollution source or not? This is the critical question.
    3. Under what specific circumstances will EPA issue a clean water 
permit or require the States to do so?
    4. What is the relationship between existing BMP's under the 319 
program and BMP's recognized under the new rule. If the 319 BMP's are 
not acceptable, what are the new criteria?
    5. Regardless of current policies or the intent of EPA, what is the 
actual impact on landowners and forestry activities if there is full 
enforcement of the proposed rules?
    6. To what extent will additional regulation drive landowners to 
convert land to non forestry uses?
    In summary, while we look forward to working with EPA to protect 
water quality, the proposed rule is misguided. Even with recent changes 
in policy, it creates ominous and uncertain Federal regulation over 
silviculture and forest management. I am concerned that it also opens 
the door for abuse by those who do not support active management and 
stewardship of our natural resources.
    Our collective efforts on behalf of the public should focus not on 
additional permitting and a shift to Federal control, but on 
monitoring, education and additional support to the States to enforce 
existing laws.
    Thank you for the opportunity to provide this testimony.
                               __________
                                   State of New Hampshire, 
          Department of Resources and Economic Development,
                                          Concord, NH, May 4, 2000.
Hon. Bob Smith,
U.S. Senate,
Washington, DC.
    Dear Senator Smith: I am writing to express my dismay about the 
proposed Environmental Protection Agency rule revision that would 
change forestry from a nonpoint source to a point source, thereby 
requiring a Federal permit to execute standard timber management 
practices.
    My primary objection is that many States, including New Hampshire, 
already have programs in place to ensure protection of clean water. The 
Division of Forests and Lands, one of four divisions within the 
Department of Resources and Economic Development, is the State 
government agency responsible for the enforcement of forestry laws, 
including those laws protecting water quality. The division's law 
enforcement staff inspects logging operations in the State to ensure 
compliance with these laws. In addition, our forest rangers promote 
educational programs, such as those offered through certified logger 
programs, to encourage awareness of and compliance with environmental 
protection regulations.
    I firmly believe that our efforts should be aimed at monitoring, 
education and, when necessary, enforcement of existing laws. These 
current practices are infinitely preferable to implementing additional 
Federal regulations. Realistically, the new permitting processes will 
be ignored by those individuals who have little or no regard for the 
law and will place an untrue burden on law-abiding woodland owners both 
in the Granite State and nationwide.
    I regret that I am unable to attend your May 6 field hearing, but I 
hope you will take my concerns into consideration as the U.S. Senate's 
Environment and Public Works Committee reviews the proposed EPA rule 
change.
    Thank you for your support.
            Sincerely,
                                            George M. Bald,
                                                      Commissioner.
                               __________
    Statement of J. Charles Fox, Assistant Administrator for Water, 
                    Environmental Protection Agency
                              introduction
    Good afternoon Mr. Chairman. I am Chuck Fox, Assistant 
Administrator for Water at the Environmental Protection Agency (EPA). I 
appreciate the opportunity to testify before this committee on the work 
we are doing--in cooperation with other Federal agencies, States, and 
local communities--to identify polluted waters around the country and 
restore their health.
    My testimony to your committee in February described in some detail 
the key elements of the Clean Water Act program for restoring polluted 
waters--generally known as the ``Total Maximum Daily Load'' or TMDL 
program. It described the over 20,000 waterbodies identified by States 
as polluted in 1998. It also described our effort, begun almost 3 years 
ago, to work with a diverse Federal Advisory Committee to review the 
TMDL program and identify needed improvements in existing regulations. 
And, my earlier testimony described the changes to the current TMDL 
regulations that EPA proposed in August of last year.
    Rather than review these topics again today, I would like to focus 
on work we have done since February with a range of interested parties 
to discuss the important issues raised in the proposed regulations.
    As a result of these discussions, I am confident that we can 
develop a final regulation that addresses many of the suggestions we 
have heard while still providing for a strong, common-sense program--
led by the States and local communities--to identify and restore the 
Nation's polluted waters.
    I will also review some recent developments related to the TMDL 
program. For example, a Federal court in California recently confirmed 
the EPA's long-standing view that the Clean Water Act calls for 
polluted runoff from nonpoint sources to be accounted for in the 
identification of polluted waters and in the development of TMDLs. 
Finally, Mr. Chairman, I will describe the Administration's strong 
opposition to the legislation (S. 2417) you recently introduced with 
Senator Crapo calling for a delay of several years in finalizing 
revisions to the TMDL program regulations.
             consultation with parties interested in tmdls
    Over the past several months, EPA has worked closely with many 
groups and organizations interested in the TMDL program and in the 
proposed revisions to the current TMDL regulations. We have also made a 
special effort to review the many public comments we received on the 
proposed regulations.
Consultation with States
    As I indicated in my testimony in February, the Clean Water Act 
provides that States have the lead in the identifying polluted waters 
and developing TMDLs.
    It is critical that States stay in this leadership role and that 
they are partners in developing and implementing the program for 
restoring polluted waters described in our final regulations.
    In developing the proposed revisions to the TMDL regulations, we 
worked closely with State officials, including a group set up by the 
Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA) and the Environmental Council of the States 
(ECOS). In addition, four senior State officials were members of the 
Federal Advisory Committee on the TMDL program.
Consultation with the U.S. Department of Agriculture
    For the past several years, EPA and the United States Department of 
Agriculture (USDA) have worked in close cooperation to design and 
implement programs to protect water quality.
    EPA and USDA worked together in developing the Clean Water Action 
Plan several years ago, developed the EPA/USDA Animal Feeding Operation 
Strategy issued last year, and worked with other agencies to draft the 
Unified Federal Policy for management of water quality on a watershed 
basis proposed earlier this year.
    When the proposed TMDL rule was published last August, concerns 
were raised in comments by the USDA. In response to these concerns, I 
met with Under Secretary for Natural Resources and the Environment, 
James Lyons, and we established a joint EPA/USDA workgroup to review 
concerns of USDA with the TMDL proposal.
    The USDA/EPA workgroup has been meeting on a regular basis over the 
past 3 months and these meetings have involved several dozen staff from 
different parts of both agencies. These intensive discussions have 
helped both agencies think through how our programs can best be 
coordinated.
    EPA and USDA recently released a Joint Statement describing areas 
of agreement on the TMDL rule. Mr. Chairman, I ask that a copy of the 
joint Statement be included in the record.
    Some of the key elements of this Joint Statement describe changes 
EPA expects to include in the final TMDL rule on topics of interest to 
the USDA. For example, the Joint Statement outlines how EPA and USDA 
propose to address the problem of restoring polluted waters that are 
impaired as a result of forestry operations. The USDA/EPA forestry 
proposal is discussed in more detail later in my testimony.
    In addition, the Joint Statement addresses the treatment of diffuse 
runoff in our August TMDL proposal. EPA remains committed to voluntary 
and financial incentive approaches to reduce runoff from diffuse 
sources of pollution where there is reasonable assurance that these 
controls will be implemented. The proposed rule would not require Clean 
Water Act permits for runoff from these sources.
    The President's fiscal year 2001 Budget backs up this commitment to 
voluntary and incentive-based programs with proposals that State grants 
for polluted runoff programs be increased from $200 to $250 million and 
that funding for conservation assistance programs at the US Department 
of Agriculture be increased by $1.3 billion. The benefits that result 
from these and other assistance programs will be given due credit in 
the TMDL process.
    Since the majority of polluted waters are polluted in whole or in 
part by runoff from diffuse sources, a management framework that does 
not address them cannot succeed in meeting our clean water goals. As I 
discuss in more detail later in this testimony, this view was recently 
endorsed by a Federal court in California.
Review of Comments on the Proposed Regulations
    I want to assure the committee that EPA is fully, and carefully, 
reviewing the public comments on the proposed regulations.
    The Agency received over 34,000 comments on the proposed TMDL 
regulation. The comments fall into three general groups:
     We received some 30,546 postcards addressing control of 
water pollution from forestry operations. Many of these comments are 
virtually identical.
     We received 2,747 comments from diverse individuals and 
organizations expressing a view on one or two elements of the proposal.
     We received 781 comments from groups or individuals 
expressing comments on multiple parts of the proposal.
    The Administrator and I view each and every comment as important. 
In anticipation of extensive comment, EPA began working to organize and 
evaluate comments received even before the close of the comment period. 
Since the comment period closed, we have reassigned staff as needed to 
review and summarize comments.
    This is an important effort begun over 3 years ago with the 
convening of a Federal Advisory Committee. EPA has made every effort to 
assure a full and careful review of public comments. If anything, the 
high level of interest in the regulation has given us an extra measure 
of determination to assure that the final TMDL rule is based on a 
careful consideration of the record.
             expected changes to proposed tmdl regulations
    I want to outline our current thoughts on how to change the 
proposed revisions to the TMDL regulations and proceed with the 
important work of restoring America's polluted waters.
Delivering the Promise of the 1972 Clean Water Act
    The final rule will provide a common-sense, cost-effective 
framework for making decisions on how to restore polluted waters. EPA 
expects that the final rule will:
     Tell the Full Story.--Provide for a comprehensive listing 
of all the Nation's polluted waters;
     Meet Clean Water Goals.--Identify pollution reduction 
needed to meet the clean water goals established by States in water 
quality standards;
     Encourage Cost-Effective Clean-Up.--Assure that all 
sources of pollution to a waterbody are considered in the development 
of plans to restore the waterbody;
     Rely on Local Communities.--Foster local level, community 
involvement in making decisions about how best to meet clean water 
goals;
     Foster On-the-Ground Action.--Call for an implementation 
plan that identifies specific pollution controls for the waterbody that 
will attain clean water goals;
     Commit to Environmental Results.--Require a ``reasonable 
assurance'' that the needed pollution reductions will be implemented; 
and
     Assure a Strong Program Nationwide.--EPA will establish 
lists of polluted waters and TMDLs where a State fails to do so.
Enhancing State Flexibility in Managing Polluted Waters
    States will have the lead to identify and clean up polluted waters 
through the TMDL program. The final regulation will expand the 
flexibility that States have to tailor programs to the specific needs 
and conditions that they face. EPA expects that the final rule will:
     Give States More Time.--Allow States 4 years to develop 
lists of polluted waters, rather than 2 years as under current 
regulations;
     Give States More Time.--Allow States to develop TMDLs over 
a period of up to 15 years, rather the 8-13 year timeframe of the 
current program;
     Tailor to Local Conditions.--Tailor implementation plan 
requirements and add flexibility to account for different types of 
sources causing the water quality problem; and
     Endorse Voluntary Programs.--Give full credit to voluntary 
or incentive-based programs for reducing polluted runoff through 
diverse control measures, including best management practices (BMPs).
Streamlining the Regulatory Framework
    In response to comments from many interested parties, the final 
rule will be streamlined and focused on what is needed for effective 
TMDL programs. EPA expects that the final rule will:
     Drop Threatened Waters.--Drop the requirement that 
polluted water lists include ``threatened'' waters expected to become 
polluted in the future;
     Allow More Flexibility in Setting Priorities.--Drop the 
proposed requirement that States give top priority to addressing 
polluted waters that are a source of drinking water or that support 
endangered species;
     Drop Petition Process.--Drop the proposal to provide a 
public petition process for review of lists of impaired waters or TMDL 
program implementation;
     Drop Requirements for Offsets of New Pollution.--Drop 
proposals to require offsets before new pollution can be discharged to 
polluted waters prior to the development of a TMDL; and
     Phase-In Implementation.--New requirements for polluted 
waters lists become effective in 2002 and new requirements for TMDLs 
will be phased in over an 18-month period.
USDA/EPA Forestry Approach
    In finding a common view of the best approach to reducing forestry 
impacts on water quality, EPA and USDA agreed that a number of States 
are doing an outstanding job of managing forest operations and 
preventing water pollution. We want to recognize and rely on these 
strong State programs to both prevent water pollution and to fix those 
pollution problems that do occur.
    Not all States, however, currently have strong forest management 
programs. Many of these States are working hard to upgrade programs 
over the next several years. These efforts need to be encouraged and 
supported.
    Finally, some State forestry programs may not be adequate to 
prevent water pollution problems for the foreseeable future. In 
situations where States choose not to develop approvable programs 
within 5 years, EPA and USDA recognize the need to have a ``safety 
net'' for water quality. The safety net that we envision is to empower 
State environmental agencies to issue Clean Water Act permits for 
discharges of stormwater from forestry operations, in very limited 
circumstances.
    Let me be clear that, under our approach, no Clean Water Act 
permits would be issued for at least 5 years from the date of the final 
TOOL rule. And, no permits would be issued in States that now have, or 
that develop, adequate forest water quality programs. The final rule 
will describe basic criteria of adequate programs, including 
appropriate best management practices identified in consultation wash 
USDA.
    Where a State has not developed a strong forest water quality 
program after 5 years, forestry operations might be asked to have a 
permit, but only if:
     the forestry operation resulted in a ``discharge'' from a 
point source (diffuse runoff from a silviculture operation will not be 
subject to a permit under any circumstances);
     the operation contributes to a violation of a State water 
quality standard or is a significant contributor of pollutants to 
waters; and
     the State Clean Water Act permit authority determined that 
a permit, as opposed to a voluntary or incentive-based program, was 
needed to assure that pollution controls would be implemented.
    EPA may also designate forestry operations as needing a permit, but 
our ability to do so is even more limited than that of the State. In 
addition to meeting the conditions mentioned above, the EPA would need 
to be establishing a TMDL where a State did not do so.
    EPA agrees that, where a State finds that a permit is needed, best 
management practices, rather than numeric effluent limits, are 
appropriate as permit conditions.
    In addition, because States have the discretion to issue permits, 
forest operators that have not been told by the permit authority that 
they need a permit will not be subject to government or citizen 
enforcement for failure to have a permit.

            IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

    I want to briefly review some recent, important developments 
related to the TMDL program.

Reducing Workload and Assuring Adequate Resources
    State officials have expressed concern over the workload and costs 
of the TMDL program. EPA is making every effort to respond to this 
concern. Last month, EPA issued a regulation eliminating the 
requirement that States submit lists of polluted waters this year; new 
lists will not be due until 2002. The decision to eliminate the 2000 
listing process has saved States and others hours of work and has 
allowed us all to concentrate on the important job of developing TMDLs 
for the over 20,000 waterbodies already identified as polluted.
    States are also concerned about the costs of administering the TMDL 
program. The annual appropriation available to States to administer and 
directly implement TMDLs and the clean water program has steadily 
increased from $131 million in 1993 to a proposed $410 million in the 
Administration's proposed 2001 budget.
    The President's fiscal year 2001 Budget increases State grant 
funding for TMDLs by $45 million in fiscal year 2001 alone. When States 
match this new funding, about $70 million in new funding will be 
available for implementing the TMDL program.
    In addition, EPA has provided States with the discretion to use up 
to 20 percent of funding under section 319 to develop TMDLs and for 
related work. The President's request for 319 funding in fiscal year 
2001 is $250 million and thus provides up to $50 million in additional 
TMDL funding.
    And, EPA expects that the final rule will support more cost-
effective development of TMDLs by specifically encouraging States to 
develop TMDLs for groups of polluted waterbodies on a watershed scale.
    EPA has worked with States to develop detailed assessments of the 
costs of key elements of the clean water program. Based on this 
analysis, and in consultation with the Office of Management and Budget, 
EPA projects that the funding proposed in the President's budget would 
be sufficient for States to administer the TMDL program in 2001 under 
the final TMDL regulations expected to be promulgated this summer.
Garcia River Decision
    A Federal court in California, reviewing a challenge to a TMDL 
developed for the Garcia River, concluded last month that the Clean 
Water Act authorizes EPA to establish TMDLs for waters ``polluted only 
by logging and agricultural runoff and/or other nonpoint sources rather 
than by any municipal sewer and/or industrial point sources.''
    The court noted that the Supreme Court has consistently referred to 
the Clean Water Act as establishing a ``comprehensive and all-
compassing'' program of water pollution regulation. The court found 
that the logic of section 303(d) required that listing and TMDLs were 
required for all impaired waters, and concluded that excluding nonpoint 
source impaired waters would have left a ``chasm'' in the statute. And, 
the judge found that Congress' passage of section 319 in 1987 was 
consistent with the view that section 303(d) covered nonpoint sources 
of pollution because TMDLs were needed for the planning required under 
Section 319.
    This decision confirms EPA's long-standing interpretation of the 
Act. It also makes clear that the requirement to list waters polluted 
by diffuse or nonpoint sources, and develop TMDLs for these waters, is 
based on the Clean Water Act rather than the existing or proposed TMDL 
regulation.
GAO Report on Water Quality Monitoring
    Also in March, the General Accounting Office released a report 
critical of data used by States and EPA to make water quality 
decisions.
    EPA has responded to the report in detail, agreeing with some 
conclusions and disagreeing with others.
    EPA agrees with the GAO conclusion that some States lack the data 
that they need to fully assess the water pollution problems in their 
State. In many States, the lack of an extensive, and expensive, 
monitoring network prevents the State from evaluating all waters on a 
regular basis. Given limited resources, however, knowledgeable State 
managers focus monitoring resources on the most likely problem areas.
    The GAO report recognizes this approach and reports ``State 
officials we interviewed said they feel confident that they have 
identified most of their serious water quality problems.'' The GAO 
report suggests that the polluted waters identified from this 
monitoring may not be all of the polluted waters in the State. It does 
not indicate that the polluted waters that are identified as polluted 
are improperly identified as polluted. In other words, the TMDL program 
may not be focused on enough waterspout it is not focused on the wrong 
waters. In addition, if a waterbody is listed as polluted by mistake, 
it can be removed from the list.
    Some observers have incorrectly concluded that the report found 
that States do not have the data that they need to develop TMDLs. There 
are several problems with this conclusion.
    First, GAO generally found that States do have the data they need 
to develop TMDLs for point sources.
    Second, while most States now lack detailed data to develop a TMDL 
for waters polluted by nonpoint sources, the development of these site-
specific data has not been a priority of State monitoring programs. EPA 
and States recognize and expect that, once the process of developing a 
TMDL is begun, sometimes, several years later, States will need to 
supplement the initial screening data used to identify the problem with 
more detailed assessments needed to develop a TMDL. The lack of these 
data today is not a reason to delay a TMDL.
    Third, GAO concludes that the lack of detailed nonpoint source 
related data makes it ``difficult to directly measure pollutant 
contributions from individual nonpoint sources and, therefore, assign 
specific loadings to sources in order to develop TMDLs.'' This would be 
a concern if EPA's existing or proposed TMDL regulations required that 
States have data to assign specific loadings to individual sources, but 
they do not. Rather, EPA's proposed regulation specifically provided 
that allocations to nonpoint sources may include ``gross allotments'' 
to ``categories or subcategories of sources'' where more detailed 
allocations are not possible.
Atlas of America's Polluted Waters
    States submitted lists of polluted waters in 1998. Over 20,000 
waterbodies across the country are identified as not meeting water 
quality standards. These waterbodies include over 300,000 river and 
shore miles and 5 million lake acres. The overwhelming majority of 
Americans--218 million--live within 10 miles of a polluted waterbody.
    A key feature of the 1998 lists of polluted waters is that, for the 
first time, all States provided computer-based ``geo--referencing'' 
data that allow consistent mapping of these polluted waters. In order 
to better illustrate the extent and seriousness of water pollution 
problems around the country, EPA prepared, in April of this year, an 
atlas of State maps that identify the polluted waters in each State. 
The maps are color coded to indicate the type of pollutant causing the 
pollution problem. And, bar charts show the types of pollutants 
impairing stream/river/coastal miles and lake/estuary/wetland acres.
    Mr. Chairman, I ask that a copy of the Atlas of America's Polluted 
Waters be included in the hearing record.
Economic Analysis
    Several Members of Congress have suggested that EPA did not conduct 
an adequate assessment of the cost of the TMDL regulation. As you know, 
Mr. Chairman, cost assessments of proposed regulations are strictly 
governed by statute and by Executive Order.
    In compliance with these requirements, EPA described the 
incremental costs of the proposed regulation. We did this work 
carefully and fully, in compliance with applicable guidelines. EPA is 
working with States and others to define the overall costs of 
administering the TMDL program, including both the base program costs 
and the incremental costs of the new regulations. EPA is committed to 
providing an estimate of these costs prior to promulgation of the final 
TMDL regulations.
    Many commenters on the proposed revisions to the TMDL regulations 
indicated an interest in EPA's estimate of the overall costs of 
implementing the TMDL program and restoring the Nation's polluted 
waters.
    It is important to note that several provisions of the Clean Water 
Act call for attainment of water quality standards adopted by States. 
Notably section 301(b)(1)(C) of the Act requires that all discharge 
permits include limits as necessary to meet water quality standards. 
The TMDL process does not drive the commitment to meet water quality 
standards. Rather, it provides a comprehensive framework for 
identifying problem areas and allocating pollution reductions necessary 
to fix problem among a wider range of pollution sources (i.e. not just 
point sources).
    EPA recognizes that the TMDL process imposes some administrative 
costs for States, communities and pollution sources. We believe, 
however, that these administrative costs could be largely offset by the 
significant savings to be achieved over the next decade as a result of 
the TMDL process. By bringing all sources of pollution in a watershed 
together, the local community and the State can work together to 
evaluate various approaches to achieving needed pollution reductions. 
For example, the cost to remove a pound of a given pollutant may be 
high for some sources and low for others.
    The TMDL process lays out these considerations and lets the local 
community decide how to meet its clean water goals. EPA expects many 
communities to opt for cost-effective approaches, many of which rely on 
low cost controls over nonpoint sources.
    Under the final revisions to the TMDL rules to be published this 
summer, opportunities for shifting pollution control responsibility 
from high cost point source controls to lower cost controls over 
nonpoint sources will be greatly enhanced. Under the new rules, States 
and EPA will be able to defend point source permits that alone will not 
result in attainment of water quality standards because the TMDL must 
provide a ``reasonable assurance'' of implementation of other needed 
pollution reductions.
    Under the TMDL rules in effect today, ``reasonable assurance'' is 
not a necessary element of a TMDL and cost effective sharing of 
pollution reductions is much less likely. As I have testified, 
``reasonable assurance'' of implementation can be established based on 
voluntary and incentive-based programs.
    EPA is developing rough estimates of the costs of attaining clean 
water goals using the TMDL model and not using the TMDL model (i.e. 
relying on point source controls only to meet water quality standards) 
and will make this estimate available in conjunction with promulgation 
of the TMDL regulation.
                         opposition to s. 2417
    Mr. Chairman, the legislation you introduced with Senator Crapo, S. 
2417, includes some important provisions expanding authorizations for 
State clean water grants. But the Administration must strongly oppose 
the bill because it would delay final TMDL regulations by at least 3 
years, and perhaps much longer.
    The bill would expand authorizations for several key State grant 
programs, including the clean water program management grants under 
section 106 of the Clean Water Act and the nonpoint pollution control 
grants under section 319 of the Act. The Administration believe that 
adequate State grant funding for clean water programs is critical to 
effective operation of the Nation's clean water program. We have 
proposed an increase of $150 million over the past 2 years in funding 
for State nonpoint control programs and an increase of $45 million in 
fiscal year 2001 for State water program grants. However, the 
Congressional Budget Resolution limits domestic discretionary spending 
such that it will be very difficult to meet the Administrations's 
proposed increases. Given the Congressional Budget Resolution, the 
funding levels proposed in the bill are unrealistic. One of the 
unintended consequences could be to divert funding from other valuable 
water quality efforts. The Administration stands ready to work with 
Congress to achieve our ambitious goals of substantially increased 
funding for important water quality work.
    The section 106 grant authorization would increase to $250 million 
with $50 million of this amount reserved for implementation of TMDLs. 
The President's fiscal year 2001 budget provides an increase of $45 
million in the section 106 grant that is reserved for TOOL development 
with an appropriate State match. This $45 million increase would bring 
the total amount of the section 106 grant to $160.5 million in fiscal 
year 2001.
    The bill would authorize $500 million for the section 319 grant 
program, which is double the President's fiscal year 2001 request. Some 
$200 million of this amount would be reserved for grants to implement 
nonpoint pollution control projects. Further, the bill would 
significantly lower the current non-Federal matching requirement. The 
Administration recommends maintaining the current non-Federal match, 
which is a more appropriate rate of 60 percent Federal funds with the 
remaining project costs provided by non-Federal funds. For any given 
level of available Federal funding, the bill's proposal of a 90 percent 
Federal matching requirement would result in fewer projects funded, and 
fewer areas and people being served.
    Provisions of S. 2147 call for a study of the scientific basis for 
the TMDL program. While there are technical issues associated with the 
development of TMDLs, many of the essential scientific bases for 
developing TMDLs and restoring polluted waters are already available. 
There is no need for a review of this science by the National Academy 
of Sciences. In addition, other objectives of the study, such as 
assessments of total costs of meeting water quality standards, are 
questions that the National Academy of Sciences is not best suited to 
answer.
    Section 5 of the bill provides for the funding of five watershed 
management pilot projects. States and EPA already have extensive 
experience in the development and implementation of watershed 
management projects at several geographic scales. For example, the 
National Estuary Program has invested tens of millions of dollars in 
watershed management projects on over 28 estuaries around the country. 
Numerous other watershed management projects have been completed or are 
underway. It would be a mistake to divert $2 million to these five 
projects when this funding is badly needed to support broader State 
efforts to develop TMDLs.
    Finally, section 6 of S. 2147 would prevent the finalization of 
TMDL regulations until the completion of the study by the National 
Academy of Sciences. The Administration is strongly opposed to this 
provision of the bill.
    Enactment of this proposal could result in the effective shut-down 
of the TMDL program in many States as they and other parties defer work 
on TMDLs until the comprehensive studies mandated by Congress are 
completed. Sadly, Congress would be telling thousands of communities 
across the country that are eager to get to work restoring the over 
20,000 polluted waters to stand down--to pack up their clean water 
plans and put them into the deep-freeze for the foreseeable future 
while a panel of scientists meets here in Washington, behind closed 
doors, for almost 2 years, to write a report.
    Many States have strong public confidence in their TMDL programs 
and expect to work cooperatively with the public in listing polluted 
waters and developing TMDLs. State efforts to meet commitments to the 
public to run effective TMDL programs would be hampered because many 
affected pollution sources could cite the congressionally mandated 
national study as a reason to delay any action on TMDLs before release 
of the study and subsequent revision of the rules. Public confidence in 
the TMDL process could be seriously eroded.
    Citizens may step-up efforts to seek court orders to complete lists 
of polluted waters and TMDLs. Without final regulations to guide EPA 
and State efforts to implement the TMDL program, courts could issue 
detailed judicial guidance for the TMDL program.
    I hope, Mr. Chairman, that I can convince you and other Members of 
Congress that we do not need to postpone any longer these important 
improvements to the TMDL program. We have a solid legislative 
foundation in the Clean Water Act. We have a good TMDL program that 
will be even better with the revisions to the program regulations that 
we will finalize this summer. Most importantly, people all over the 
country want to get to work restoring polluted rivers, lakes, and 
coastal waters, and they want to start now.

                               CONCLUSION

    The 1972 Clean Water Act set the ambitious--some thought 
impossible--national goal of ``fishable and swimmable'' waters for all 
Americans. At the turn of the new millennium, we are closer than ever 
to that goal. Today, we are able to list, and put on a map, each of the 
20,000 polluted waters in the country. And, we have a process in place 
to define the specific steps to restore the health of these polluted 
waters and to meet our clean water goals within the foreseeable future.
    It is critical that we, as a Nation, rededicate ourselves to 
attaining the Clean Water Act goals that have inspired us for the past 
25 years. The final revisions to the TMDL regulations will draw on the 
core authorities of the Clean Water Act, and refine and strengthen the 
existing program for identifying and restoring polluted waters.
    Mr. Chairman, I consistently hear from critics of the TMDL program 
that it is more of the old, top-down, command-and-control, one-size-
fits-all approach to environmental protection. In fact, the TMDL 
program offers a vision of a dramatically new approach to clean water 
programs.
    This new approach focuses attention on pollution sources in proven 
problem areas, rather than all sources. It is managed by the States 
rather than EPA. It is designed to attain the water quality goals that 
the States set, and to use measures that are tailored to fit each 
specific waterbody, rather than imposing a nationally applicable 
requirement. And, it identifies needed pollution reductions based on 
input from the grassroots, waterbody level, rather than with a single, 
national, regulatory answer. In sum, we think we are on the right track 
to restoring the Nation's polluted waters.
    The final revisions to the existing TMDL regulations will support 
and improve the existing TMDL program and they will be responsive to 
many of the comments we have heard from interested parties.
    Thank you, for this opportunity to testify on EPA's efforts, in 
cooperation with States and other Federal agencies such as the 
Department of Agriculture, to restore the Nation's polluted waters. I 
will be happy to answer any questions.
                               __________

JOINT STATEMENT OF THE DEPARTMENT OF AGRICULTURE AND THE ENVIRONMENTAL 
                           PROTECTION AGENCY

    Abstract: The Environmental Protection Agency (EPA) has proposed 
revisions to existing regulations for administering the Total Maximum 
Daily Load (TMDL) provisions of the Clean Water Act (CWA). The 
Department of Agriculture (USDA) identified a range of issues with 
respect to the proposed TMDL rule. EPA and USDA convened a process to 
review and discuss these issues with the goal of resolving the issues 
prior to final issuance of the regulations. This paper, which has been 
prepared jointly by EPA and USDA, describes the agreement between the 
two agencies concerning development of final TMDL regulations.

                              INTRODUCTION

    Under the TMDL program, States provide a comprehensive listing of 
all the Nation's polluted waters. The States then develop ``pollution 
budgets,'' or TMDLs, for waters impaired by nonpoint and point sources 
of pollution. Pollution reductions called for by a TMDL budget are 
designed to meet certain safe levels of pollutants that allow 
beneficial uses, such as swimming or fishing, established in water 
quality standards adopted by States.
    Congress established the TMDL program in the CWA of 1972. EPA's 
early work to implement the Act focused on establishing effluent 
limitations through National Pollutant Discharge Elimination System 
(NPDES) permits for point sources like factories and wastewater 
treatment plants. Lawsuits filed against the EPA in the late 1980's and 
1990's, however, have compelled the development of TMDLs on specific 
schedules and for all impaired waters, including waters impaired by 
nonpoint sources of pollution (e.g. agriculture and forestry).
    To improve implementation of the TMDL program, EPA convened a 
Federal Advisory Committee and proposed amendments to existing TMDL and 
NPDES regulations in the Federal Register on August 23, 1999.

                      EPA/USDA AREAS OF AGREEMENT

    In response to concerns with the proposed TMDL rules at USDA, Under 
Secretary Jim Lyons of USDA and EPA Assistant Administrator Chuck Fox 
decided to form an interagency workgroup to review key issues. Working 
through the winter, this group reached agreement on the issues of 
interest to USDA and EPA has agreed to reflect these agreements in its 
final TMDL rule.
State and Local Governments Should Have the Lead
    The EPA and USDA agree that State governments and local citizens 
should take the lead in developing pollution budgets for impaired 
waterways. To enhance flexibility in State programs, the following 
revisions are expected to be included in the final TMDL rule:
    (1) eliminate the requirement that States give top priority to 
development of TMDLs for certain types of impaired waters;
    (2) eliminate the requirement that States identify ``threatened'' 
waters;
    (3) lengthen the time period for States to develop periodic lists 
of impaired waters from 2 years to 4 years;
    (4) grant States up to 15 years to develop TMDLs for their impaired 
waters;
    (5) do not impose a deadline for attainment of water quality goals; 
and
    (6) drop the proposal to require new discharges to polluted waters 
to obtain ``offsets'' for new pollution.
Reducing Agricultural Impacts on Water Quality
     Two general forms of agricultural runoff, ``return flows from 
irrigated agriculture'' and ``agricultural stormwater discharges,'' are 
statutorily exempt from NPDES permit requirements and treatment as 
point sources. However, USDA and the agricultural community had 
concerns that the EPA proposal moved away from traditional notions of 
what is a nonpoint source of pollution and strategies for reducing 
impacts through voluntary efforts and Best Management Practices (BMPs). 
EPA and USDA agree that voluntary and incentive-based approaches are 
the best way to address nonpoint source pollution. Water quality 
improvements that farmers make through Federal conservation programs, 
or on their own initiative, will be given due credit in the development 
of TMDLs. If a farmer will invest in voluntary conservation practices 
to improve water quality the ``pollution budget'' will recognize those 
investments in developing a strategy for future cleanup. Under the EPA 
proposal, States have the flexibility to allocate pollution load 
reductions between nonpoint and point sources as they consider 
appropriate and are not required to allocate pollution reductions to 
specific categories (e.g. agriculture) in proportion to pollution 
contributions.
Controlling Water Quality Impacts of Forestry Operations
    USDA raised concerns with EPA's proposal to allow States, and in 
some cases EPA, to issue a Clean Water Act permit where needed to 
correct a water pollution problem caused by discharge of stormwater 
from forestry operations.
    USDA and EPA have developed a modified approach that grants States 
flexibility in designing their TMDL program. Under this approach, no 
NPDES permits will be required for point sources of polluted stormwater 
from forestry operations for 5 years from publication of the final 
rule. During that time, EPA will work with the USDA and the public to 
develop guidance for States to follow in designing and adopting 
forestry BMP programs for the protection of water quality.
    In States that develop and maintain forestry BMP programs that are 
recognized by EPA as adequate (i.e. generally consistent with this 
guidance) forest operations will have no exposure to NPDES permit 
requirements. States will be encouraged to grant forest operators that 
are implementing BMPs in good faith an exemption from any directly 
enforceable State water quality standards. Since existing Federal law 
requires forest operations on National Forest System lands to be 
conducted consistent with water quality requirements, operations 
conducted on these lands will be exempt from NPDES authority.
    The idea is that forest operators in States with approved programs 
will know what is expected of them, what BMPs are effective in reducing 
pollution and need to be implemented. If for some reason the 
implementation of the core set of BMPs results in a pollution problem 
then the State must commit to refining or better tailoring the BMPs as 
necessary to attain water quality goals.
    Only if a State does not have an approved forestry BMP program 
after 5 years, will the State or EPA have the discretion to issue NPDES 
permits in limited cases where the operation results in a discharge 
that causes water pollution problems. Any NPDES permits that are issued 
by EPA will call for implementation of BMPs, as opposed to attainment 
of numerical effluent limitations; EPA expects that State NPDES permit 
authorities will follow this approach. States will not be required to 
issue NPDES permits to forest operations discharging polluted 
stormwater; it will be a matter of their discretion. Dischargers that 
are not required to get a permit will not be subject to citizen or 
government enforcement action under the Clean Water Act.
TMDL Program Funding
    States have identified a need for increased funding to support more 
complete assessment of the condition of waters and development of TMDLs 
for polluted waters. Adequate funding of the TMDL program is key to its 
implementation. The EPA is currently developing estimates of the 
overall cost of the TMDL program and the analysis will be available 
when the final rule is published. The President's fiscal year 2001 
budget increases funding for State administration of the TMDL program 
by $45 million. The budget also increases funding for State programs to 
reduce polluted runoff by $50 million. USDA agricultural conservation 
programs are dramatically enhanced by the fiscal year 2001 budget. The 
Environmental Quality Incentives Program (EQIP) would be increased from 
$200 million to $325 million. The Conservation Reserve Program (CRP) 
would be expanded to 40 million acres. Under current authority 
additional CRP continuous sign up incentives totaling $100 million in 
fiscal year 2000 and $125 million in each of fiscal years 2001 and 2002 
will be available. Finally, under the President's budget 250,000 acres 
would enroll annually in the Wetlands Reserve Program (WRP), which will 
reach its statutory 975,000 acre cumulative cap in fiscal year 2001. 
This kind of Federal budget response is necessary to provide State and 
local partners the tools to successfully build their TMDL programs.

                               CONCLUSION

    The final TMDL regulations will provide an improved framework for 
restoring our polluted waters. Much work remains to be done to meet 
clean water goals. The EPA and USDA will continue to work with State 
and private partners in improving the communication and outreach 
essential for successfully implementing the TMDL program.
                                 ______
                                 
                    Department of Environmental Protection,
                                        Boston, MA, April 27, 2000.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
    Dear Senator Crapo: The Commonwealth of Massachusetts supports your 
efforts through Senate 2417 to increase funding for States to implement 
the Federal Clean Water Act, and particularly, the new TMDL rules under 
the Act. As you know, Secretary Bob Durand has supported the need for 
this funding. I wanted to raise several more specific issues related to 
your efforts.
    According to a recent resource allocation model, the Massachusetts 
Department of Environmental Protection would need to increase staffing 
levels by an order of magnitude in order to keep pace with the 
analytical elements of the TMDL rule. Nationwide, the financial gap for 
clean water programs (excluding infrastructure) is at least $1.3 
billion. We appreciate your leadership in recognizing and addressing 
this funding shortfall.
    We also support the inclusion of the provisions relating to State 
functional equivalency, watershed approaches, pollution trading, and 
non-regulatory tools for solving water quality problems. The 
Commonwealth embraces these concepts and has developed a nationally 
recognized program that is backed by strong State statutes and 
regulations. We believe that by recognizing the effectiveness of strong 
State programs, your bill will promote creative and cost-effective ways 
of improving water quality. To signal your commitment to State 
functional equivalency, watershed-based pollution trading, and other 
innovations, Senate 2417 could explicitly require that the final rules 
contain provisions to encourage such innovations.
    While we support the funding and State flexibility provisions of 
the bill, we do not support the proposed 13-month delay in the issuance 
of the new TMDL rule. The U.S. EPA, as stated in a letter to 
Congressman Shuster dated April 5, has indicated a willingness to 
modify the TMDL regulations to address many of the concerns expressed 
by the States. We believe that EPA should be given the opportunity to 
implement the final TMDL rules. The proposed study by the National 
Academy of Science (or another appropriate group) could be used to 
review the States' experiences under the new rule and make 
recommendations for any necessary modifications.
    Please do not hesitate to contact me or Arleen O'Donnell of my 
staff at (617) 292-5975 for any additional information or assistance. 
Thank you for your leadership on this very important issue.
            Sincerely,
                                            Lauren A. Liss,
                                                      Commissioner.
                                 ______
                                 
             Functional Equivalency--Massachusetts Approach

                  FUNCTIONAL EQUIVALENCY BASIC CONCEPT

    ``Functional equivalency'' is a term used to describe one or more 
State programs which will achieve the same outcome, standard of 
performance, or level of protection as a Federal requirement. In the 
context of TMDL's, the Federal regulations would establish the baseline 
program, and then allow States to propose functionally equivalent 
programs. EPA would establish approval criteria and procedures, 
including public notice and comment.

                    SCOPE OF FUNCTIONAL EQUIVALENCY

    Functional equivalency could be constrained or open-ended. For 
example, EPA could allow State substitutions based on equivalency for 
each individual component of the Federal TMDL program, such as 303(d) 
listing methodology, TMDL development, and implementation plans. A less 
prescriptive approach might allow equivalent State program for any or 
all of these three parts for the TMDL program. The most flexible 
approach would be to allow States to propose their own TMDL programs 
which will provide the same results overall as the Federal baseline 
program. Massachusetts supports flexibility, based on the premise that 
States can achieve better results by integrating TMDLs within their own 
existing watershed programs than by setting up a partially duplicative, 
separate and competing TMDL program.

                    TYPES OF FUNCTIONAL EQUIVALENCY

    There are two basic ways to achieve the same or better results 
(i.e., functional equivalency) that may be used in combination. First, 
requirements may be equivalent because they are different but as or 
more stringent that the baseline requirement. A State TMDL program 
could be functionally equivalent by providing for some more and some 
less stringent substitutions for baseline program elements, provided 
that the overall program is as protective or preferably more 
protective. Second, requirements could be more or less broad in scope 
than the baseline program, provided that the overall program results 
are the same or better than the baseline program. While flexibility 
could extend to equivalency based on breadth in scope as was proposed 
for Phase 2 alternative stormwater programs, in the context of TMDLs, 
comparable or greater stringency of requirements is likely to yield 
more consensus on the comparison necessary for a finding of functional 
equivalency.
    Functional equivalency could also be determine by compliance with 
another similar program. For example, States with an approved CZMARA 
Section 6217 program implemented statewide (not just within the more 
limited coastal zone) should be allowed to substitute those 
implementation plans for the nonpoint source component of their TMDL 
implementation plans. A consistent definition for ``reasonable 
assurance'' should be identified for both programs to allow 
comparability. Additionally, States with comprehensive environmental 
regulations from which loading reductions can be projected should be 
given appropriate credit for equivalency.
    Functional equivalency could also be based on flexibility in TMDL 
schedules. States such as Massachusetts with well-established watershed 
planning and management efforts underway would benefit from selectively 
postponing the TMDL analysis for certain parameters in the near term, 
instead relying on 305(b) and other assessment data to move directly to 
implementation using State law authorities for permitting, compliance, 
and enforcement. If the effort does not achieve or show progress toward 
results within an acceptable timeframe (e.g., 5 years), only then would 
the State need to invest the resources to produce an ``official'' TMDL. 
Where implementation of a watershed plan or comprehensive coastal 
management plan (CCMP) serves the same purpose as a TMDL implementation 
plan, the 5-year renewal would evaluate progress and trigger the need 
for more vigorous action as warranted (e.g., moving from generic 
loading assumptions to more analytical reduction allocations).

                 ELIGIBILITY FOR FUNCTIONAL EQUIVALENCY

    To address concerns about too much latitude in functional 
equivalency leading to failures by States; to make progress toward 
water quality goals, alternative State programs could be limited to 
States with explicit State law authority over nonpoint sources. EPA 
might also limit eligibility for equivalent programs to States with 
disparate pollution sources other than large-scale agricultural or 
silvicultural runoff that are simply not amenable to NPDES permitting; 
such a limitation would be appropriate because these States are most in 
need of flexibility due to the complexity of both their TMDL analyses 
and implementation plans.

     A STATE TMDL STRATEGY AS THE BASIS FOR FUNCTIONAL EQUIVALENCY

    A State TMDL Strategy could provide the basis for a functionally 
equivalent program. Massachusetts developed its TMDL Strategy in 1998. 
Together with the existing implementation of the Watershed Approach 
already underway, the Strategy earned the highest grade for any State 
in the National Wildlife Federation study of TMDL programs. The 
Strategy sets out a schedule for development of TMDLs by 2012, 
beginning with a pilot program and concentrating on pollutants with 
established protocols. The 1998 list identified 908 segments of 
impaired waters, resulting in the need to perform 1454 TMDLs 
(Massachusetts has not tackled the TMDL problem through limiting its 
303(d) list). TMDLs would be a component of the Watershed Management 
Plans for each of the State's 27 basins. The Strategy relies on a 
variety of regulatory programs for implementation to address water 
quality problems, including the State Clean Waters Act, the Wetlands 
Protection Act, a comprehensive stormwater program, the Water 
Management Act (withdrawals/flows), new source approvals for water 
supplies, a comprehensive program for septic systems, and linkage of 
water quality problems of SRP funding decisions. The watershed approach 
includes extensive stakeholder involvement which will provide a forum 
for negotiating load allocations.
                                 ______
                                 
       Rhode Island Department of Environmental Management,
                                       Providence, RI, May 3, 2000.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
    Dear Senator Crapo: I am writing to commend you for introducing 
legislation to increase authorizations for grants to States to carry 
out important clean water programs (S. 2417). I also, however, urge you 
to delete section 6 of the bill that would delay the issuance of final 
regulations for the ``Total Maximum Daily Load'' or TMDL program for 
several years pending completion of a study by the National Academy of 
Sciences.
    The primary provision of S. 2417 would recognize the significant 
needs that States have for increased funding for management of clean 
water programs and for providing financial assistance for projects to 
reduce water pollution. The authorizations provided in the bill for 
funding under Clean Water Act section 106 (State program management) 
and 319 (nonpoint pollution control programs and projects) would 
dramatically increase Rhode Island's ability to meet the Nation's clean 
water goals.
    Section 6 of the bill would delay the issuance of final regulations 
to guide efforts to identify and restore impaired waters around the 
country through the TMDL program and call for a study of several 
related issues by the National Academy of Sciences. I recommend that 
this provision of the bill be deleted for several reasons.
     EPA is listening to State Concerns.--Rhode Island has 
worked closely with the EPA over the past several months to explain 
concerns with the TMDL regulations the Agency proposed last August. I 
believe that EPA is listening to State concerns and based on the letter 
issued by the EPA Assistant Administrator for Water, Chuck Fox is 
likely to address many of the most significant concerns in the final 
TMDL regulations.
     Court Challenges Will Continue.--In many States, courts 
have stepped in to set specific schedules and other requirements for 
development of TMDLs. The development of national TMDL regulations that 
address many of the issues raised in suits is critical to successfully 
persuading judges that States and EPA have a coherent national program 
for restoring impaired waters. For example, judges have directed that 
States develop TMDLs on 7-year schedules, rather than the 15-year 
period provided in the proposed TMDL regulations. Without clear 
national regulations, States will face continued court challenges and 
continued judicial intervention.
     Increase Administrative Complexity of the TMDL Program.--A 
delay in issuance of final TMDL regulations would make an already 
difficult program more complex and uncertain. For example, States need 
to be planning now to develop lists of impaired waters by April of 
2002. The proposed delay of 18 months in issuance of TMDL rules could 
result in new listing requirements shortly before the lists are due. In 
addition, many States are now actively building TMDL programs. States 
are not likely to agree to every element of the final TMDL rules EPA is 
working on, but the costs of having to restructure programs several 
years from now to meet new regulations may well be greater than the 
cost of imperfect rules published this summer.
     Public Misunderstanding.--It is clear that most Americans 
support the Clean Water Act and want to see polluted waters cleaned up 
as soon as possible. Many States are now making good progress in 
working with the public to build confidence in State TMDL programs. The 
proposed delay in finalizing TMDL regulations will be described as an 
effort to delay the important work of restoring polluted waters. This 
could reduce public support of State TMDL programs and set back State 
efforts to involve the public in this important work.
     Science is Not the Issue.--The job of restoring impaired 
waters poses a range of technical issues. At the same time, the 
critical scientific bases for developing TMDLs are well established and 
there is no fundamental scientific uncertainty preventing the 
development of TMDLs. While States and EPA are discussing many policy 
issues related to the TMDL program, the National Academy of Sciences is 
not likely to be able to significantly contribute to this discussion.
    Many States have had difficult and trying experiences with the TMDL 
program over the past several years. Recently, however, States have 
made some good progress in building TMDL programs that have both sound 
science and strong public support. The proposed changes recently 
addressing our concerns. Although some States still have issues that 
need to be worked out, I believe that it is time to move forward with 
an updated TMDL program and EPA action to finalize TMDL regulations 
this year.
    I look forward to working with you on this important issue.
            Sincerely,
                                            Jan H. Reinsma,
                                                          Director.
                               __________
       STATEMENT OF HON. OLYMPIA J. SNOWE, U.S. SENATOR FROM THE 
                             STATE OF MAINE

    Thank you, Mr. Chairman. I appreciate you holding this hearing 
today, and honoring my request to have a field hearing near my State of 
Maine, offering a forum for my constituents to voice their concerns 
about the Environmental Protection Agency's proposed rule on TMDL.
    I also want to thank you, Mr. Chairman, for following through on my 
request to hear testimony today from Maine Conservation Commissioner, 
Ronald B. Lavaglio, who is representing the State of Maine. He will 
raise questions as to just how these EPA regulatory changes would 
improve, in a timely and meaningful basis, the future of water 
monitoring in Maine under TMDL. The proposed rule could also impact 
permitting under the National Pollution Discharge Elimination System 
(NPDES). As a matter of fact, last November, the State requested that 
EPA grant it the statewide authority to handle the NDPES permitting 
process, and a decision is expected by May 16.
    First of all, I would like reiterate my strong support for clean 
water. Maine is unique because of its outstanding rivers, streams and 
lakes that wind for over 32,000 miles throughout the State along with 
17 gorges, 61 waterfalls, 31 white water rapids and nearly 6,000 
lakes--all part of the six major watersheds in the State.
    I am proud to say that my State of Maine has been at the forefront 
of the EPA's TMDL program since it was established under Section 303(d) 
of the Clean Water Act. Given Maine's dedication to this program, and 
the State's long history of assuring excellent water quality for our 
residents, the proposed rule raises concerns about whether or not EPA 
is heading down a bureaucratic road that supersedes the State's 
responsibilities to adhere to its Clean Water Act responsibilities.
    As you know, TMDL is a calculation of the maximum amount of 
pollutant that a body of water can receive and still meet water quality 
standards. Water quality standards are set by State agencies using a 
formula that identifies the use for each body of water--such as 
drinking water supply, recreation, and fishing--and the allowable 
amount of a single pollutant for each body of water. The calculation 
must include a margin of safety to ensure that the waterbody can be 
used for its designated purpose and must also account for seasonable 
weather variations.
    Under the Clean Water Act, States are currently tasked with 
identifying ``non-point'' sources of pollution, which come from 
multiple sources rather than one fixed entry point. The Environmental 
Protection Agency regulates ``point source'' pollution for the Federal 
Government. These pollutants are discharged from clearly known sources, 
such as visible drainage pipes, ditches, and tunnels. The recently 
proposed EPA rule would--for the first time--enable the EPA to regulate 
non-point sources of pollution for bodies of water affected by 
agriculture and forest activities.
    The proposed rule has generated a great deal of concern within the 
State's forestry and agriculture industries from whom you will hear 
today, as well as within the Maine Department of Environmental 
Protection and the Department of Conservation. Earlier this year, the 
State brought to my attention its concerns that the current science and 
available data behind the TMDL process for non-point source pollutants 
may not be able to support the program as prescribed in the August 23, 
1999, proposed rule. The true impact of these non-point sources--
including rain runoff that originates from fields and timberland--is 
often hard to determine with any amount of scientific certainty.
    Since silvaculture, or forestry, has not been identified as a major 
pollutant source for water bodies listed on Maine's non-source 
monitoring list, I join Maine officials in questioning how the costs 
associated with this proposed rule could impact Maine's economy, forest 
management, and regulatory overhead costs for forest operations.
    In an effort to address these concerns, the U.S. Department of 
Agriculture and the EPA formed an interagency workgroup to review key 
issues. USDA had asked the EPA to clarify when discharges from 
silvaculture activities would be required to have a Clean Water Act 
permit, and how such permits should be structured.
    In addition, the USDA asked EPA to provide a comprehensive cost 
estimate and funding proposal for its TMDL initiative, and EPA is 
developing estimates of the overall cost. This information, however, 
will not be available until the final rule is published, according to 
EPA, and this raises economic concerns. Even though the Administration 
has requested increased funding for TMDL programs for Fiscal Year 2001, 
this does not ensure that the States will actually realize increased 
funding to carry out a more complete assessment of the conditions of 
waters and a development for TMDLs for polluted waters once the 
appropriations process is completed.
    An additional concern raised by the National Milk Producers 
Federation is that the proposed rule will disrupt a number of 
conservation and environmental programs established under the Freedom 
to Farm Bill of 1996. The American Farm Bureau Federation has stated 
that, while point sources can be shut off with a simple turn of the 
handle, there is no way for farmers to shut off the vagaries of 
weather, and predicting and controlling runoff from storm events is 
difficult. EPA's command and control approach is not possible in a 
perfect world, the Farm Bureau says, because rain would still fall.
    The State's environmental and conservation agencies have also made 
the point that, by reaching beyond its TMDL monitoring authority, the 
EPA will not have the resources to review Maine's TMDL submissions on a 
timely and meaningful basis. The State fears that this will add to the 
complexity of the TMDL program without providing real solutions to non-
point source pollutants.
    It is important that all of these concerns be addressed before any 
proposed rule change is finalized, and I have written Carol Browner, 
the EPA Administrator, to share the questions and concerns raised by 
Maine's conservation and environmental regulators and its agricultural 
and forest products industries. I also joined 24 other Senators in a 
letter to EPA that raised similar concerns, requesting that the 
proposed rule be withdrawn because it of its enforcement based 
regulation, which is counterproductive to current methods that have 
proven to be effective, especially through State voluntary initiatives. 
My colleagues and I emphasized that we all place great importance on 
the need to continue to clean up our nation's lakes and rivers, and 
that we must work together to achieve these goals.
    The USDA and EPA issued a joint statement on May 1, 2000, that they 
believe addresses the silvaculture and agriculture concerns that have 
been raised about the proposed rule and that these revisions in the 
Agreement may be included in the final TMDL rule. The industries 
involved, however, are not showing that same confidence. This hearing 
will provide an important forum for State officials, the industries, 
and other organizations who will be affected by the revisions to share 
their reactions and will allow this committee to learn whether their 
concerns have been addressed. Because of the far reaching impacts any 
final rule would have, I request that the committee urge the EPA to 
take the time to make sure that the rule gives the States the 
flexibility they need to build on State water protection efforts in a 
cost effective manner by using appropriate scientific and technical 
information that will actually lead to the reduction of pollution from 
both point and non-point sources.
    Mr. Chairman, I will continue to work with you and our colleagues 
in the Senate and with the EPA to ensure that the interests of my State 
and yours are represented on this issue in order to ensure continued 
improvements for the protection of our nations' rivers and streams.
    I thank the Chair.
                               __________
                                   State of New Hampshire, 
                                    Office of the Governor,
                                          Concord, NH, May 5, 2000.
Senator Bob Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC.
    Dear Chairman Smith: Thank you and the members of the Committee on 
Environment and Public Works for taking the time to conduct a hearing 
in Whitefield, New Hampshire on the proposed Total Maximum Daily Load 
(TMDL) rule and the National Pollution Discharge Elimination System 
(NPDES) permit process. I appreciate the opportunity that you have 
provided to New Hampshire residents to present their concerns on the 
TMDL rule to both the committee members and EPA officials.
    As Governor, I have been a strong advocate for both the forest 
products industry, which has expressed significant concerns with the 
proposed TMDL rule, and the environment. We must continue to strike the 
right balance for New Hampshire between the needs of this important 
traditional industry and environmental protection if we are to maintain 
our strong economy and quality of life.
    The original proposed TMDL regulations were highly criticized by 
the New Hampshire Department of Environmental Services, the New 
Hampshire Department of Resources and Economic Development, and New 
Hampshire businesses. The proposed regulations were too burdensome on 
both DES and the regulated community, particularly the forest products 
industry. The proposed rules were also too prescriptive, removing the 
flexibility of States to tailor programs to State-specific priorities 
and needs.
    New Hampshire has been successful in developing partnerships 
between State government and business that improve both the economy and 
the environment. It is critical that Federal regulations provide us the 
flexibility to develop innovative solutions and programs that are 
tailored to meet the needs of New Hampshire.
    Forestry is a critical component of New Hampshire's heritage, and 
our economy, especially in the North Country. Our long history of 
forest stewardship is reflected in the many tree farms that are found 
across New Hampshire. We must maintain this working landscape by 
supporting working forests, not discouraging them. New Hampshire 
already has programs in place to prevent and resolve environmental 
problems potentially caused by forestry operations. This program 
includes three critical elements:
     Implementation of best management practices. It is 
important to note that a best management practices manual for timber 
harvesting operations was published in February 2000 by the Division of 
Forests and Lands of the New Hampshire Department of Resources and 
Economic Development (DRED), in cooperation with DES, the University of 
New Hampshire, Federal agencies including USDA and EPA, and the New 
Hampshire Timberland Owners Association.
     Training and outreach through partnerships of State and 
Federal agencies and nonprofit organizations including the New 
Hampshire Timberland Owners Association and the Society for the 
Protection of New Hampshire Forests.
     Technical assistance, compliance and enforcement by DES 
and DRED.
    Under any reasonable criteria, our existing programs are effective. 
There should never be a need for Federal NPDES permits for forestry 
operations not already covered by existing requirements because these 
problems will be addressed at the State level.
    EPA has recently proposed, in conceptual form, a number of changes 
in the proposed rule, which move in the right direction. Chuck Fox, the 
Assistant Administrator for Water, should be commended for his efforts 
to be responsive to public comments. However, the many who have shown 
such deep concern and who would be affected by these new rules deserve 
the opportunity to review and evaluate the details of EPA's proposed 
changes. I urge EPA to publish the actual language of proposed changes 
for forestry for public review as soon as possible to allow evaluation 
and comment on the changes by all interested parties prior to final 
promulgation. This is only appropriate considering the magnitude of the 
comments received about the TMDL rules as originally proposed, and the 
significance of expected changes.
    As in most other States, New Hampshire's TMDL program is 
significantly underfunded. Additional Federal funding to support State 
development to TMDL's is needed, regardless of the results of the EPA 
rulemaking. The President's budget contains $45 million for Federal 
fiscal year 2001, which translates into just over $200,000 for New 
Hampshire to assist with TMDL development. This is a good start, but is 
not adequate to sustain New Hampshire's TMDL program. I request that 
you consider adding at least another $5 million to the President's 
budget proposal. At the $50 million level, small States like New 
Hampshire will receive a 50 percent increase in section 106 funding, 
equivalent to what large States are already receiving at the $45 
million funding level under EPA's new formula for distribution of 
section 106 funds.
    The President's proposed budget also includes rigid conditions for 
the State match for the ``new'' Section 106 moneys which New Hampshire 
and many other small States will not be able to meet. Consequently, I 
would also request that you change these provisions and ensure that any 
additional funding for the TMDL program includes maximum flexibility 
for matching these Federal funds. This is the only way to ensure that 
the Federal funds allocated for New Hampshire will be fully utilized to 
make significant progress toward the goals of the Clean Water Act.
    I look forward to working with you to ensure that New Hampshire's 
waters are protected and improved while ensuring that our forest 
products industry and other traditional activities can continue to 
flourish.
            Very truly yours,
                                                    Jeanne Shaheen.
                               __________
Statement of Hon. Charles F. Bass, Representative in Congress from the 
                         State of New Hampshire
    Chairman Smith and members of the committee, I would like to 
express my gratitude to you for holding this hearing today on the 
Environmental Protection Agency's (EPA) proposed rules regarding Total 
Maximum Daily Loads (TMDL) from silviculture operations and for 
affording me the opportunity to submit my statement for the record. I 
have serious concerns about the EPA's proposal to reclassify 
silviculture from a ``non-point source'' activity to a ``point source'' 
activity under the Clean Water Act (CWA).
    The EPA's proposal would mandate regulation of all silviculture 
activities as point sources of pollution under the National Pollutant 
Discharge Elimination System (NPDES), opening up all private landowners 
to NPDES permit regulations. Specifically, this regulation would 
include previously exempt categories, such as nursery operations 
runoff, site preparation, reforestation activities, thinning, 
prescribed burning, pest and fire control, harvesting operations, 
surface drainage, and road building and maintenance.
    I am concerned that removing the exemption on these activities may 
unnecessarily impose heavy-handed Federal regulation on forestry 
activities. The silviculture industry has a long history of seeking 
common-sense solutions to achieve effective, sustainable land 
management. In a 1996 EPA report to Congress, forestry activities were 
identified as the smallest source of nonpoint source pollution, 
contributing approximately 3 percent to 9 percent of nonpoint source 
pollution to our nation's waters. Due to the relatively small impact of 
this industry, I believe that landowners should be encouraged to work 
directly with States and local governments to find answers to pollution 
problems. New Hampshire's forest landowners, through the use of Best 
Management Practices, the New Hampshire Professional Logger Program, 
the Sustainable Forestry Initiative, and Tree Farm Program, have 
contributed considerable resources and effort to protection of water 
quality.
    Furthermore, in the original rulemaking process following enactment 
of the CWA, the EPA recognized that Congress's original intent was to 
designate forestry activities as a nonpoint source of pollution. 
Therefore, this proposed rule would represent a departure from 30 years 
of regulatory practice. This change would subject landowners to citizen 
suits for permitted activities, not to mention potential fines, and 
necessitate Federal permits for most forest management activities, 
which would be subject to unnecessary and potentially costly delays. 
The burden of these rules could force landowners to forfeit their 
stewardship of the land in favor of giving into the ever-present 
pressures of development, which we can all agree is not in the best 
interest of the environment.
    Although we all share the common goals of categorically improving 
the quality of our nation's streams and rivers, we must not impose an 
excessive Federal regulatory burden that could cripple the silviculture 
industry. Instead, I would encourage continued cooperation between the 
Federal Government and the States to provide the necessary incentives 
to landowners to maintain healthy forests.
    In closing, I want to again thank Chairman Smith and the committee 
for holding this extremely important hearing. I hope that the testimony 
presented today by myself and others will convince the EPA to 
reconsider this proposed rule.
                               __________

           STATEMENT OF RONALD LOVAGLIO, COMMISSIONER, MAINE 
                       DEPARTMENT OF CONSERVATION

    Senator Smith, members of the Committee on Environment and Public 
Works, distinguished guests, I am Ron Lovaglio, speaking on behalf of 
the State of Maine. I serve as Maine's Commissioner of the Department 
of Conservation, but today am representing all of Maine's natural 
resource agencies, as well as the Administration.
    In January of this year, Maine's Commissioner of Environmental 
Protection and I submitted joint comments on EPA's proposed TMDL/NPDES 
rules. At the same time State Forester Thomas Doak submitted comments, 
as did Maine's Department of Agriculture. Our concerns were 
substantial:
     Resources to implement EPA's proposal are inadequate. TMDL 
development and implementation as proposed, within the given timetable, 
would require at least a doubling of State resources. We consider EPA's 
own oversight capability of this process inadequate.
     Inclusion of ``threatened'' waters is unnecessary and 
burdensome, especially in light of the public review process that EPA 
proposed. The definition EPA provides leaves open virtually any water 
body, and the adjacent landowners, to entanglement in this complex and 
potentially costly process, in a divisive and potentially litigious 
public forum.
     The proposal will not advance us any faster toward 
achievement of clean water goals. Application of TMDLs and NPDES 
permits to nonpoint sources such as forestry would be highly 
impractical, costly, and burdensome to private landowners, businesses, 
and the State agencies. No new, on-the-ground measures for achieving 
better protection of waters from pollution are proposed. Resources for 
this regulatory program would be better spent on improving technical 
assistance and education.
     EPA's new authority under the proposal would be too broad 
and inflexible. At the same time, protocols for the exercise of that 
authority are vague. As an example, applying NPDES permits to 
silviculture is left to the States, but with oversight unpredictably 
exercised by EPA.
     Forests typically provide the cleanest water of all land 
uses. Increased regulations, or even the perception of such an 
increase, act as a disincentive to manage land as forest, and as an 
incentive to convert land to other uses with higher water quality 
impacts.
    EPA received tens of thousands of comments on its proposal. In the 
months since the end of the comment period in January, EPA has somewhat 
confusingly restated its position.
     In ``Achieving Cleaner Waters'', released in March, EPA 
acknowledged that forests are essential to maintaining clean water for 
wildlife and for human use in many parts of the country. However, EPA 
provided no further insight into how costly TMDLs and the threat of 
NPDES permits would enhance State efforts to apply a combination of 
voluntary and regulatory approaches to the forestry water quality 
problems that do occur. Instead, EPA lamely justified its sweeping 
change in how forestry is addressed as ``backstopping the States''.
     EPA Assistant Administrator Charles Fox's April letter to 
the Transportation Committee included a list of ``Key Elements of the 
Expected Final Regulation.'' The letter indicates some new resources 
available for TMDL implementation and for voluntary and incentive-based 
polluted run-off programs. The ``Key Elements'' included more time for 
polluted waters lists and TMDL development, and appeared to reaffirm 
EPA's commitment to voluntary approaches with respect to nonpoint 
pollution sources. In fact, EPA dropped major components of their 
original proposal, including threatened waters, offsets for new 
pollution, the public petition process, and the potential for Federal 
permits to be applied to forestry operations. However, the letter 
supplied few details about how the remaining program would address 
nonpoint sources, and pointedly made reference to a Federal lawsuit in 
California which in EPA's words affirms ``the statutory basis for 
including these sources in the TMDL process''. In that case the court 
did not rule on the manner in which California implemented EPA's TMDL, 
however. In effect, implementation of TMDLs for nonpoint sources 
remains a black box lacking substantive guidance by EPA, testing by the 
States, or interpretation by the courts. Indeed, the court suggested 
that the plaintiffs could seek redress by appealing California's 
restrictions, while simultaneously acknowledging that easing or failing 
to implement restrictions might lead to loss of funding to California 
from EPA.
     Earlier this week EPA and USDA issued a joint statement 
which reiterated some of the same modifications to the original EPA 
proposal, including threatened waters, offsets, and timelines for 
development of TMDLs. Removing the public petition component, as 
articulated in April, is not mentioned in this most recent document. In 
addition, under the joint proposal, no NPDES permits for forestry would 
be required, but only for 5 years. Thereafter, forestry would be exempt 
from NPDES permits, but only if States were implementing a forestry 
Best Management Practices Program approved by EPA. So-called 
``guidance'' for such State programs would be developed by EPA within 
the same timeframe. The letter also references increases in 
conservation funding, but identifies no new resources for developing 
and implementing BMP programs. This proposal, in our view, would 
effectively leave EPA with direct oversight over State efforts.
    Maine has little confidence that EPA's efforts to finalize a rule 
by the end of June will result in a practical mechanism to apply the 
best analytic tools and the best remedies to the issue of clean water. 
Further, we are concerned with a seemingly reluctance on EPA's part to 
recognize that State, rather than Federal approaches, particularly in 
the area of nonpoint pollution sources, have proven most successful in 
recent years. At the same time Federal resources have not matched the 
need for water quality monitoring, and voluntary and incentive-based 
pollution prevention.
    Maine's water quality efforts, administered through several 
agencies, combines water quality laws, incentives to landowners, and 
best management practices. While not perfect, we have made impressive 
progress, in partnership with numerous stakeholders.
    In our view, Senate Bill 2417 presents a much preferred 
alternative. The bill recognizes that the single most effective way to 
improve water quality and reduce nonpoint pollution is to increase 
funding to State programs that reach landowners directly, and improve 
practices on the ground. The bill supports innovative State approaches 
that develop and build on watershed management efforts. Finally, S. 
2417 provides critical resources both for monitoring to develop the 
water quality data needed to make informed decisions, and to develop a 
better understanding of how and where TMDLs can be a useful tool--and 
where they may not be.
    Thank you for the opportunity to comment today.
                                 ______
                                 
                          Maine Department of Agriculture, 
                                    Food & Rural Resources,
                                          Augusta, ME, May 5, 2000.
Hon. Robert Smith,
Committee on the Environment and Public Works,
Washington, DC.
    Dear Senator Smith: After reviewing the Proposed Revisions to the 
Water Quality Planning and Management Regulation, 40 CFR Part 130, the 
Maine Department of Agriculture, Food and Rural Resources offers the 
following comments:
    1. Identifying threatened or impaired waters on the basis of 
``Evaluated Data'' [continuing]. This is the issue of greatest concern 
to our department, for a number of reasons. First, is the fact that it 
is not based upon hard facts but deductive reasoning or assumptions. It 
requires one to reach out on the basis of such factors as ``Historical 
Adjacent Land Uses or ``Location of Sources'' to make a determination 
that a waterbody is being impaired or threatened. Therefore, if a farm 
is located next to a waterbody that appears to have symptoms of water 
quality problems, it is likely to be considered as the or a source. 
That is akin to being convicted before being proven guilty. Second, is 
the minimum elements that are required, once a TMDL is developed for a 
waterbody, including the requirements for:
    a. Load Allocation.--A load allocation is to be assigned to all 
sources and if possible, to specific sources, based upon ``reasonably 
accurate estimates''. If supporting data is not present to make a 
definite determination that water quality is impaired or threatened, it 
stands to reason that the source or sources can not have been 
identified either or how much of a load is being contributed by those 
sources. Assumptions must be made again, as to the suspected sources 
which without data or documentation is kind of like ``Guilt-by-
Association''. In other words, because an activity is a possible 
source, it therefore is a source and must reduce its guestimated 
contributing pollutant load. This can be an unfair burden to be placed 
upon farmers.
    b. Margin of Safety.--Requiring a margin of safety for a TMDL that 
was developed upon the basis of Evaluated Data amounts to adding insult 
to injury for the suspected, potential sources, such as farmers. 
Farmers will be required to implement even greater measures in order to 
achieve reductions in assumed pollutant load levels.
    c. An Allowance for Future Growth.--This seems like another unfair 
burden to place upon known or suspected sources of a pollutant(s) as it 
is based upon best guesses that may or may not be realized. Farmers 
should not be penalized for activities beyond their control and which 
might never happen.
    d. Implementation Plan.--This is perhaps the most troublesome 
element of a TMDL developed upon the basis of Evaluated Data. It 
requires a description of the management measures and/or actions which 
will be implemented to achieve the load allocations and a demonstration 
that those measures or actions are expected to achieve the required 
pollutant loads. This is required for a waterbody that may not have 
data to positively determine it has a pollutant(s) problem or where the 
sources are or how much each potential source contributes. Other 
elements of an implementation plan that are of concern to this 
department include the need for milestones. These are measurable 
incremental milestones to determine whether or not progress is being 
made to reach water quality standards. A monitoring plan must be 
developed to obtain the data necessary to make such determinations, 
even though no background data may be present. It makes sense for water 
bodies that have good data and a point source(s) but not for Evaluated 
Data and for non-point sources of pollution. If you do not have good 
background data or know for sure where the pollutant(s) are coming 
from, these would be, at best, shots-in-the-dark. And, if the 
milestones were not being met, along a predetermined time line, the 
proposed regulations would require enforceable actions to see that they 
were met.
    2. Another concern by this department is that of non-point sources 
as compared to point sources.--Point sources are known entities 
contributing known quantities of a pollutant or pollutants. Non-point 
sources are generally assumed sources which may or may not contribute 
unknown quantities of a pollutant or pollutants. The problem of 
regulating non-point sources is compounded when coupled with 
waterbodies considered threatened or impaired upon the basis of 
evaluated data. How is it possible to assign pollutant(s) loads to 
potential non-point sources which may or may not be contributing to a 
water quality problem? And then to require enforcement to make sure 
assumed corrective actions or measures are being implemented to achieve 
arbitrarily chosen milestones along an arbitrarily chosen time line?
    3. Unfunded Mandates Reform Act.--On page 46043 of the draft, you 
State ``In addition, since today's proposal does not impose any 
requirements on the private sector, the private sector will incur no 
costs. Thus, today's proposal is not subject to the requirements of 
section 202 and 205 of UMRA''. We disagree with this statement in that 
it will be the private sector, including farmers, that will have to 
implement measures to reduce (in most cases assumed) pollutant loads. 
It is by no means clear that all of the measures required to be 
implemented by the suspected pollutant source will be fully funded. 
Then there is the issue of maintenance of the measures and the 
potential impact that some of the measures may have on a farming 
operation, particularly if those measures go beyond standard 
agricultural Best Management Practices. These costs could be 
substantial to a farming operation.
    In summary, the Maine Department of Agriculture, Food and Rural 
Resources is concerned about the impact that the proposed regulations 
will have on farmers and recommends that you re-consider some of your 
proposed requirements. We are particularly concerned with the proposal 
to require TMDL's for waterbodies assumed to be threatened or impaired 
on the basis of ``Evaluated Data'' and when the sources of suspected 
pollutants are non-point. It is our recommendation that TMDL's only be 
required for those waters which have strong supporting data; whether 
the sources of pollutants is point or non-point. We do however feel 
that the implementation plan for such TMDL's should be adjusted to 
reflect the source of pollutant. If it is from a point source or 
sources, the implementation plan proposed is appropriate. If however, 
the source or sources are non-point, where an unknown amount of load is 
coming from a number of suspected sources, more flexibility should be 
allowed for the implementation plan requirements. For waters which are 
assumed to be threatened or impaired from non-point sources on the 
basis of evaluated data, we recommend an entirely voluntary program 
which focuses on education and information. Data gathering should take 
place on these waters during this time so that an accurate 
determination of water quality becomes available for future 
decisionmaking. This would be a much more defendable approach and one 
which would not unfairly burden a potential pollutant source (farmers) 
in the watershed of a waterbody in which a water quality problem is 
assumed.
    Thank you for your consideration of our comments and concerns. We 
would be glad to discuss any of the issues raised.
            Sincerely,
                                           Peter N. Mosher,
                         Director, Office of Agricultural, Natural 
                                               and Rural Resources.
                                 ______
                                 
              Maine Department of Environmental Protection,
                                                  January 19, 2000.
Ms. Carol Browner, Administrator,
Environmental Protection Agency,
Washington, DC.
    Dear Ms. Browner: The Environmental Protection Agency's proposed 
changes to the TMDL and NPDES programs are a source of concern to our 
agencies, our customers in the broad communities we serve, and the 
citizens of Maine. As Commissioners of two of Maine's major natural 
resource agencies, we submit the following comments regarding the 
Proposed Revisions to the Water Quality Planning and Management 
Regulation: Proposed Rule, 40 CFR Part 130. Our comments address 
specific issues important to Maine. In addition, the Maine Department 
of Environmental Protection (MEDEP) has communicated other issues 
jointly with other New England States in the consensus comments 
submitted by the New England Interstate Water Pollution Control 
Commission, dated December 9, 1999.

                 STAFF RESOURCES WILL NOT BE SUFFICIENT

    While we commend EPA's effort to expand the scope of and accelerate 
the schedule for the TMDL process, we, like many other States, are 
concerned about the resources available to do the job. We expect that 
the effort as proposed would require, at a minimum,.double the staff 
resources currently available for Maine's TMDL work. We also question 
whether US EPA will have the staff available to review the States' TMDL 
submissions on a timely and meaningful basis.
    Maine has been at the forefront in using TMDLs as a key aspect of 
our regulatory process. We have been moving forward with the TMDL 
process as quickly as any other State. Maine recently completed a TMDL 
for the Salmon Falls River, which forms a portion of the boundary 
between Maine and New Hampshire. Getting approval of the TMDL was not 
easy. Maine DEP submitted the TMDL in May 1999, and it was approved 
after revision in November 1999.
    Maine is also concerned that the current science and available data 
behind the TMDL process, particularly in the case of non-point source 
pollutants, may not be ready to support the program as prescribed in 
the proposed rule. We like the idea of developing a market-based system 
for trading offsets to reduce pollution loads, and we hope that 
practical methods to do so will be developed in the coming years.
    Maine also submits that the States should have more latitude in 
setting its own criteria and priorities for TMDL development, based not 
only on the nature and severity of impairment, but also on how quickly 
a water body might be restored to attainment. We believe we should 
direct our resources to provide a balance between the difficult and the 
achievable cases. Added requirements to the TMDL process and the NPDES 
program without significant additional resources will detract from the 
State's overall ability to address water quality issues.

 THE PROPOSED RULES MAY NOT ADD REAL LEVERAGE IN ADDRESSING NON-POINT 
                            SOURCE POLLUTION

    Regarding non-point source issues, particularly for silviculture 
and agriculture, we question whether the proposed rule will really 
advance us any faster toward our clean water goals. Maine is working 
hard within both the agriculture and forestry communities to develop 
and implement Best Management Practices (BMPs). In recent years, Maine 
has passed both a Forest Practices Act and a Nutrient Management Law. 
MDEP includes non-point source pollution in our TMDL process to the 
maximum extent possible within the constraints of available data and 
science. And we already have enforcement authority for specific 
instances of discharges into the State's waters.
    EPA's treatment of and requirements for ``reasonable assurance'' 
for non-point sources is open-ended and nonspecific, but includes most 
of the very same mechanisms that the State already implements under its 
319 program and through its water quality laws. At the same time, 
protocols by which NPDES permits would be applied to non-point sources 
are left to the States to develop with Federal oversight and 
opportunities for public challenge. The proposed definition of 
``threatened waterbodies'' in the TMDL leaves open the possibility that 
NPDES permit issues may be raised before a TMDL can be completed for a 
watersheds, thus spawning procedural debate that could actually delay 
implementation of efforts to reduce pollution. Maine is concerned that 
the proposed TMDL process may turn out to be a circuitous, costly, and 
contentious route to get us to where we are today: quantifying non-
point source loads when data and resources are available, prescribing 
BMPs for non-point sources, providing technical and financial 
assistance when possible, and taking enforcement action when 
appropriate.

   WHY THE NEED TO REMOVE THE CATEGORICAL EXCLUSION FOR SILVICULTURE

    While water pollution from silviculture may be a major cause of 
impaired waters in other regions, silviculture has not been identified 
as a major source for water bodies on Maine's 303(d) list. Instances of 
water pollution from logging operations do occur, and nonpoint source 
pollution issues are taken very seriously in Maine. Effective State 
water quality laws and programs encourage use of Best Management 
Practices. In August, Maine delivered its ``Nonpoint Source Control 
Program: Program Upgrade and 15-Year Strategy'', including a 
substantial forestry component, in accordance with its mandate under 
the Clean Water Act Section 319 and CZARA Section 6217. EPA's own 
review described Maine's nonpoint source program as ``exemplary . . . 
one of the best in the nation''.
    While EPA's representation of the change in silviculture's status 
is that of a ``backstop'' that will come into force only in very rare 
instances, the proposed rules for treating forestry operations as point 
sources are vague; they provide broad authority without clear 
guidelines for the exercise of that authority. As stated above, we 
suggest that providing the authority for NPDES permitting of forestry 
activities, even as a backstop, will politicize the entire TMDL 
process, from the 303(d) listing and the reasons for impairment, to the 
TMDL itself, to the implementation plan. The proposed rules for 
requiring an NPDES permits would require extensive analysis, and could 
cause administrative delays and contentious implementation. The State's 
efforts to implement the provisions of the proposed rules (or defend 
its application of them) could divert scarce resources away from 
direct, effective mechanisms including enforcement of pollution laws, 
monitoring and training in use of Best Management Practices (BMPs). 
Finally, the proposed process could provide an inappropriate and 
inefficient forum for debate or litigation of State forestry and water 
quality policy.
    EPA's estimates of additional costs and burdens to the State due to 
the proposed changes may dramatically underestimate the landowners and 
State's actual costs of administering the program, especially given the 
importance and widespread nature of forest management in Maine's 
economy. The costs to Maine's economy and to forest management are even 
more uncertain. In the worst case, the proposed rules could increase 
regulatory overhead for many responsible forest operators without a 
substantial change in actual practice.
    Taken as a whole, the proposed rules magnify the complexity of an 
already underfunded water quality assessment, planning and permitting 
system. We hope you will consider our comments and concerns.
    Thank you for this opportunity to provide comments on this 
important matter.
            Sincerely,
                                   Martha G. Kirkpatrick, Commissioner,
                                             Maine Department of 
                                               Environmental 
                                               Protection.

                                   Ronald Lovaglio, Commissioner,
                                             Maine Department of 
                                               Conservation.
                                 ______
                                 
                State of Maine, Department of Conservation,
                                     Augusta, ME, January 18, 2000.
Ms. Carol Browner, Administrator,
Environmental Protection Agency,
Washington, DC.
    Ms. Browner: The Environmental Protection Agency's proposed changes 
to the TMDL and NPDES programs are a source of great concern to the 
Maine Forest Service, the broad communities we serve, and ultimately to 
the citizens of Maine. We are writing to register the Maine Forest 
Service's strong opposition to the changes as proposed.
    The proposed rules increase requirements of the TMDL and NPDES 
programs, and substantially increase the burden to State agencies, 
without a commensurate benefit to water quality. Of greatest concern is 
extending these programs to nonpoint sources, particularly with the 
proposed removal of the categorical exclusion of silviculture from the 
definition of ``point source''. This single change would severely 
hamper forestry practice and collaborative development of forest policy 
in Maine.
    EPA's representation of the change in silviculture's status is that 
of a ``backstop'' that will come into force only in very rare 
instances. The proposed rules, taken in their entirety, are vague in 
their implementation; provide broad authority without clear guidelines 
for the exercise of that authority; and finally, effectively impose on 
States a new mechanism for Federal oversight and public participation 
(including litigation) in forest policy and regulation based on 
hypothetical water quality impacts.

            WHY THE NEED FOR ADDITIONAL FEDERAL REGULATION?

    The highest quality water in Maine and nationwide comes from 
forested watersheds, and millions of dollars are spent in other States 
to restore forest cover in impaired watersheds. Maine's own 
``enforceable authorities'' relating to nonpoint source pollution, 
including that from forestry, were deemed adequate by a recent EPA 
study. Simply stated, the ``gap in regulatory coverage'' that EPA seeks 
to close by removing the categorical exclusion of silviculture is 
largely theoretical, or at best a regional issue. From the Maine Forest 
Service's perspective, EPA's proposal is unnecessary and does not 
ensure significant, real changes in ``on the ground'' forestry 
practices to protect water quality.
    Instances of water pollution from logging operations do occur, and 
nonpoint source pollution issues are taken very seriously in Maine. 
Effective State water quality laws and programs encourage use of Best 
Management Practices. In August, Maine delivered its ``Nonpoint Source 
Control Program: Program Upgrade and 15-Year Strategy'', including a 
substantial forestry component, in accordance with its mandate under 
the Clean Water Act Section 319 and CZARA Section 6217. EPA's own 
review described Maine's nonpoint source program as ``exemplary . . . 
one of the best in the nation''.

                        WILL EPA'S CHANGES HELP?

    EPA's proposed rules ignore the nature of nonpoint pollution 
sources and Best Management Practices. Protocols for treating forestry 
operations as point sources are vague, but likely would require 
extensive analysis, administrative delays, contentious implementation 
plans (potentially mandating specific BMPs), and burdensome permits. 
The State's efforts to implement the provisions of the proposed rules 
(or defend its application of them) will divert scarce resources away 
from direct, effective mechanisms including enforcement of pollution 
laws, and monitoring and training in use of Best Management Practices 
(BMPs).
    The proposed rules include numerous requirements for States to 
``enhance'' implementation of the TMDL/NPDES programs, including new 
requirements for preparation of 303(d) lists of impaired or threatened 
waters, submission to EPA of a methodology for listing and requirements 
for setting priorities; and required elements of a TMDL and 
implementation plans. These requirements alone will place a substantial 
burden on the State. EPA's treatment of and requirements for 
``reasonable assurance'' for nonpoint sources includes most of the very 
same mechanisms that the State already implements under its 319 program 
and through its water quality laws; in effect, preparation of a 
particular watershed TMDL will likely be a longer, more circuitous, 
more costly, and potentially contentious route to many of the same 
measures already being directed toward nonpoint sources.
    EPA's analysis indicating small economic impacts to small entities 
is predicated on the simple assumption that few silvicultural 
operations will be designated point sources. However, EPA and the 
analysts who prepared the study agree that the frequency of such 
designation is ``highly uncertain.'' The uncertainty of economic 
impacts further underscore that the rules would increase regulatory 
overhead without substantial change in actual practice.

  WHEN WOULD THE PROPOSED RULES APPLY, AND WHAT WOULD THEY CONTRIBUTE?

    EPA contends that it will require silvicultural sources to obtain a 
NPDES permit only in ``limited'' circumstances. Our concern and 
responsibility is for a consistent, progressive policy addressing 
forestry water quality issues for the long term. There are numerous 
avenues for the proposed rules to become a future battleground for 
contentious forestry issues, even before any specific TMDLs identify 
forestry as a significant pollutant source in a given watershed. The 
proposed definition of ``threatened waterbodies'' in the TMDL rules 
establishes grounds for including waterbodies or watersheds currently 
meeting water quality standards, and with the opportunity for citizen 
petitions to establish a TMDL, leaves open virtually any waterbody to 
examination. NPDES permit applications and attached conditions are open 
to public challenge and subject to ``discretion'' and interpretations 
of EPA regional administrators. Any application of EPA permits to 
forestry will likely invoke review and consultation under provisions of 
National Marine Fisheries Service's new designations of Essential Fish 
Habitat, and the Endangered Species Act. With proposed listing of 
Atlantic salmon as endangered in Maine, NPDES permit issues may well be 
raised before a TMDL can be completed on any of the watersheds, 
spawning needless debate and detracting from current conservation 
efforts.
    Taken as a whole, these regulatory mechanisms make the prospects 
for ``limited'' application of NPDES permits seem remote, and magnify 
the complexity of an already confusing Federal permitting system. EPA 
characterizes the likelihood of exercising its authority under the 
silviculture provision as ``unpredictable.'' Not recognizing that there 
will be future attempts to debate or litigate State forestry and water 
quality policy via the proposed rules suggests a lack of long-term 
vision beyond the first years of the proposed rules' implementation.
    Finally, EPA's assertion that new or significantly expanding 
dischargers might be granted NPDES permits by obtaining offsets in 
pollutant from nonpoint sources such as silviculture is highly 
impractical, and sends the wrong message to forestry operators who are 
already being required virtually to eliminate any discharges through 
use of Best Management Practices. Based on current Maine law which 
prohibits unlicensed discharges of pollutants from any source, forestry 
will likely not be eligible for offsets as proposed by EPA.
    Maine is seeking delegation to administer EPA's NPDES program. 
Maine has what EPA has characterized an ``exemplary'' nonpoint source 
program and silvicultural policies. The proposed rules will add 
pressure, including court actions, both to EPA and the State, to expand 
our 303(d) list, as well as to address silviculture as a point source 
and require individual NPDES permits if the categorical exemption is 
removed. EPA's estimates of additional costs and burdens to the State 
due to the proposed changes may dramatically underestimate the 
landowners and State's actual costs of administering the program. The 
unknown costs and increased burdens of the proposed rule is clearly not 
warranted by current impacts of silviculture to water quality.
            Sincerely,
                                            Thomas C. Doak,
                                    Director, Maine Forest Service.
                               __________
Statement of Ronald Poltak, Executive Director, New England Interstate 
                   Water Pollution Control Commission
    Mr. Chairman, members of the committee and subcommittee, my name is 
Ronald Poltak, Executive Director of the New England Interstate Water 
Pollution Control Commission. The Commission is a federally sanctioned 
interstate agency charged with water pollution management 
responsibilities working with the six New England States and New York.
    I appear before you this afternoon on behalf of the Commission, 
which supports the intent of the TMDL process which is before you 
today. As interstate agencies like ours are set up to manage on a 
watershed basis, we believe the EPA should encourage States to use 
interstate commissions to maintain consistency across the State lines 
in the development of TMDLs.
    I also speak on behalf of other interstate commissions and the 
Interstate Council on Water Policy (ICWP), and the role they have 
played or can play in forwarding the goal of clean water under the 
Clears Water Act, specifically through the TMDL process.
    1. I see the following as key interstate roles on shared 
waterbodies:
     Monitoring and assessing water quality;
     Establishing uniform or consistent uses and criteria to 
protect them;
     Establishing wastewater control requirements;
     Reviewing and approving projects; and
     Developing the 305(b) water quality assessment reports.
    2. In accomplishing these roles, it should be noted that the 
interstate commissions:
     Are well established and have developed strong working 
relationships and trust among Federal, State, and local entities. Our 
Commission was established in 1947 and has a long established 
relationship, not only with the State but EPA as well. We work with the 
States in protecting all surface and ground water and have direct 
responsibility for coordination on interstate basins In our area of 
jurisdiction.
     Provide consistency and equity among two or more States, 
and in some basins between EPA Regions;
     Can establish a process to define appropriate goals and 
program elements of TMDL development programs;
     Develop and adopt water quality standards; and
     Worked (and continues to work) with the States and 
dischargers in implementing the TMDL program.
    3. The role of EPA on interstate waters:
     Section 130.36 of the proposed rule lists circumstances in 
which EPA may establish TMDLs for interstate waters.
    On waters having interstate basin commissions, EPA should encourage 
the States to work through the interstate commissions in the 
establishment of TMDLs because:
     The commissions can help secure agreement on management 
approaches and maintain consistency across State lines;
     We are the member States and Federal Government; and
     We have a working relationship, trust and operational 
plans.

    FLEXIBILITY AND THE STATE ROLE IN IMPLEMENTING THE PROGRAM MUST 
                            BE STRENGTHENED

    In order for the TMDL program to be effective, flexibility and 
consistency with existing statutory authority is critical and must be 
provided in the final TMDL regulations. The final rulemaking needs to 
adequately reflect the partnership established with the States under 
the 1972 Clean Water Act. It is important to note that the Federal 
Water Pollution Control Act (section 101(b) gave States ``the primary 
responsibility and rights . . . to prevent, eliminate, and reduce 
pollution'') As proposed, the regulations do not reflect this 
leadership role for States outlined by Congress. States and interstate 
organizations must be afforded greater flexibility and resources to 
support their important role in implementing this critical program.
    If the TMDL program, in fact, utilizes a watershed approach to 
reduce pollution, then State and interstate organizations need to have 
primary role in implementing this program. Since those entities are 
better suited to that role than the Federal Government, it is critical 
that sufficient flexibility be granted to States and interstate 
organizations, in order to account for and address local site-specific 
factors which deviate from the national perspective.

         CURRENT FUNDING IS INADEQUATE TO CARRY OUT THE PROGRAM

    NEIWPCC is very concerned about the lack of sufficient funding to 
support the far-reaching efforts required in the proposed rule. 
Resources are already strained at the State, interstate and local 
levels by the onset of new water quality regulations, with the most 
recent being the NPDES Phase 2 stormwater program.
    NEIWPCC supports the conclusions reached by other State 
organizations that funding for Section 106 and 319 program assistance 
must triple to carry out the proposed TMDL effort. If this program is 
to be a national priority, then adequate funding must be provided at 
the Federal level for its implementation. There also needs to be a 
strong recognition of the important role that interstate river basin 
organizations will assume In this program and EPA should direct 
adequate funding to such organizations so they may carry out this role.
    Mr. Chairman and members--here is my bottom line message. Don't 
forget the benefits of interstate basin commissions. Most major rivers 
have them. We have the support of our member States because we make 
their jobs easier. In fact, it was one of my member States who told me 
about this hearing and recommended I testify. We support the TMDL 
process, it promotes a watershed approach. The concerns are related to 
how it should be administered. Interstate Basin Commissions have the 
organizational structure and technical capabilities to be a big help in 
process. Don't forget us.
                               __________

    STATEMENT OF THE NATIONAL ASSOCIATION OF CONSERVATION DISTRICTS

    America's conservation districts fully support the Clean Water 
Act's goal to restore and maintain the quality of the nation's waters. 
Conservation districts recognize and accept their responsibility to 
work with agricultural producers and other private landowners and 
operators in stemming runoff that contributes to water quality 
problems.
    The Environmental Protection Agency published proposed Total 
Maximum Daily Load Program (TMDL) regulations in the Federal Register 
on August 23, 1999. The proposed revisions will have a direct impact on 
State water quality programs, conservation district programs and 
landowners nationwide. Addressing impaired waterbodies identified under 
section 303(d) of the Clean Water Act will be a driving factor in the 
day-to-day business of allocating workload resources and making land 
management decisions that will have a direct economic impact on 
producers and other landowners.
    We believe EPA has exceeded its statutory reach by proposing the 
listing of nonpoint source-only impaired and threatened waters. 
Further, the Clean Water Act provides no authority for EPA to enforce 
implementation of any part of a TMDL other than the National Pollution 
Discharge Elimination System (NPDES) permit program.
    The history of the Clean Water Act provides ample evidence that 
Congress intended to treat point and nonpoint sources of pollution 
differently. It is clear from the structure and language of the Clean 
Water Act that section 303(d) was intended to provide a tool for 
calculating water quality-based effluent limitations for point source 
discharges. The language in section 303(d) contains no reference to 
nonpoint sources, nor to runoff, nor to section 319C the portion of the 
Clean Water Act designed specifically to address nonpoint sources of 
pollution. Instead, section 303(d) refers repeatedly to ``effluent 
limitations'' and to the requirements of section 301, which is entitled 
``Effluent Limitations.'' The way in which it is written repeated 
references to section 301 and no reference to 319 demonstrates clearly 
that Congress intended section 303(d) to deal exclusively with point 
source discharges.
    By allowing EPA to list, develop TMDLs and require implementation 
plans for nonpoint source-impaired waters, the proposed regulations 
constitute a big leap in the direction of Federal land-use regulation. 
Conservation districts strongly oppose Federal land-use regulation 
particularly under the guise of TMDL regulation.
    Under the TMDL program, compliance with section 303(d) is not 
achieved until water quality standards are attained. In the case of a 
TMDL for nonpoint sources of pollution, if, for example, agricultural 
best management practices failed to result in completely meeting water 
quality standards in a watershed, agriculture may have to be eliminated 
in that watershed? Further, EPA proposes to regulate agricultural and 
silvicultural practices such as harvesting, site preparation, thinning, 
prescribed burning, land application and more by requiring landowners 
to obtain discharge permits for these activities. Once again, this 
amounts to a foray into Federal land-use regulation. Such activities 
were exempted under prior regulations, as they are under the Clean 
Water Act's Section 404 program, and should remain so under the TMDL 
program.
    EPA's proposal also would require that, in addition to impaired 
waters, States list ``threatened'' waters. Again, section 303(d) does 
not provide authority for EPA to impose this mandate. It also directs 
that TMDLs must contain a reserve capacity for anticipated future 
loading, seasonal variation and margin of safety. It is not clear how 
this ``reserve capacity'' would be calculated or what ``margin of 
safety'' means.
    EPA's proposal also would require improving the water quality of an 
impaired stream to a standard more stringent than applicable drinking 
water maximum contaminant levels (MCLs) or aquatic habitat water 
quality criteria. This is not only unreasonable, but probably 
unattainable in any practicable manner. MCLs for treated tap water are 
not appropriate for use on source waters under the TMDL program. 
Congress enacted Clean Water Act Section 319 with the specific purpose 
of assisting States in developing nonpoint source pollution control 
programs. That program encourages States, with appropriate Federal 
financial assistance, to reduce nonpoint sources of pollution ``to the 
maximum extent practicable.'' While in cases in which a landowner 
refuses to address a proven water quality problem under a voluntary 
framework, a regulatory mechanism may be needed, it should be left up 
to States to determine the type and level of regulation they deem 
appropriate. The Federal role is most appropriate in providing funding 
resources and technical assistance to meet national water quality goals 
through State actions.
    Conservation districts oppose expanding the Clean Water Act TMDL 
program to address water quality impairments resulting solely from 
nonpoint sources of pollution. Districts also oppose requiring States 
to list threatened waters under the TMDL program. State conservation 
agencies and conservation districts, with assistance from initiatives 
such as Section 319 and NRCS's conservation technical assistance 
program, should have the lead in addressing nonpoint source pollution 
issues, primarily through voluntary, incentive-based programs.
                                 ______
                                 
       New Hampshire Association of Conservation Districts,
                                     Concord, NH, January 20, 2000.
Comment Clerk: TMDL Rule, Water Docket (W-98-31)
USEPA,
Washington DC.
    At a recent meeting the NH Association of Conservation Districts 
(NHACD) Water Quality and Urban Conservation Committee decided they 
concur with the TMDL response submitted by the National Association of 
Conservation Districts, but would like to add a few comments of their 
own.
    NHACD is a nonprofit, non-governmental association of the 10 
Conservation
Districts in NH. The Conservation Districts are subdivisions of State 
government organized along county lines. We are dedicated to the 
conservation and sustainable beneficial use of our natural resources. 
We focus on protecting and enhancing soil quality and water quality, 
but also recognize the economic component of sustainability.
    We have worked with New Hampshire's agricultural and forestry 
operations since 1946 on a voluntary basis in partnership with the 
Natural Resources Conservation Service (formerly the Soil Conservation 
Service), and other State and Federal partners. We are providing 
increasing assistance to towns in their land use decisions and 
regulations. We are non-regulatory and work by providing education, 
technical assistance and financial incentives. Funding assistance 
includes USDA programs such as the Environmental Quality Incentive 
Program (EQIP), EPA programs like 319 and Unified Watershed (both for 
NPS pollution management) grants, and FEMA-NH Office of Emergency 
Management programs like Flood Hazard Mitigation.
    We have been very effective, successfully reducing erosion, 
sedimentation and other nonpoint source pollution from agricultural and 
forestry practices, and now from development activities. New 
Hampshire's 303(d) list shows that our major NPS problems come 
primarily from land disturbance due to development, runoff from urban 
areas and combined sewer overflows.
    We continue to promote best management practices in agriculture, 
forestry, and local land use regulations. The major impediment now to 
more effective NPS pollution management is that effective measures to 
address certain practices, such as manure storage facilities and 
streambank stabilization, often exceed available financial resources.
    We are concerned that reorganizing the proposed regulatory 
structure of our present program to treat agricultural and 
sylvicultural practices like point sources, will be counterproductive 
to an effective program and impede the economic sustainability of 
animal agriculture and small woodlot (less than 1,000 acres) management 
in New Hampshire. Billions of dollars and 27 years have been devoted to 
alleviating point sources. Effective management of NPS will require 
further commitment of time and financial resources than are presently 
offered to be effective.
    There is a question as to whether EPA has the legal authority to 
use TMDLs for NPS pollution sources, however we fear that such 
regulation would be counterproductive and would impede the present 
successful efforts.
    We look forward to working with you on a program that is more 
voluntary and incentive driven.
            Sincerely,
                                              John Hodsdon,
 NHACD Water Quality and Urban Conservation Committee Chairman and 
                     Belknap County Conservation District Chairman.
                               __________

     STATEMENT OF ERIC KINGSLEY, EXECUTIVE DIRECTOR, NEW HAMPSHIRE 
                     TIMBERLAND OWNERS ASSOCIATION

    Mr. Chairman and members of the committee: Thank you for the 
opportunity to discuss the Environmental Protection Agency proposed 
rules on Total Maximum Daily Loads. As the Executive Director of the 
New Hampshire Timberland Owners Association, I represent over 1,500 
landowners, loggers, foresters and wood-using industries in the Granite 
State. Our members own and responsibly manage well over a million acres 
of productive forestland. New Hampshire has a healthy forest with a 
good balance of species, ecosystems, and age classes. We grow 
considerably more timber than we harvest. Forest industries in the 
State contribute roughly $39 billion--11 percent of the gross State 
product--to our economy annually. All open space related business--
including tourism and agriculture--comprise one quarter of the State 
economy. New Hampshire is the second most heavily forested State in the 
nation, with roughly 84 percent of the State covered by hardwood, white 
pine and spruce-fir forests. Of this forestland, 20 percent is under 
Federal or other government ownership--primarily the White Mountain 
National Forest, 10 percent is owned by forest industry, and the 
remainder, 70 percent, is under the stewardship of non-industrial 
forest landowners.

                       WATER QUALITY AND FORESTRY

    New Hampshire's commercial forestry community has long contributed 
to the State's efforts to protect water quality, and we make every 
effort to assure that our activities do not unnecessarily contribute to 
impairments of streams, rivers and lakes. In recent years, efforts on 
the part of landowners, loggers, foresters and forest industry have 
significantly increased awareness of steps that can be taken to improve 
water quality during a forestry operation. While this listing is far 
from comprehensive, efforts in this regard include:
    1. Tree Farm.--As part of a nationally recognized program, there 
are over 1,650 Tree Farmers managing almost one million acres of New 
Hampshire's forestland. As participants in this voluntary program, 
landowners commit to managing by a set of forestry standards with four 
goals: forest products, wildlife habitat, recreational opportunities 
and water quality. Landowners participating in this program develop 
forest management plans that address these areas. If landowners fail to 
follow their management plan, they can be (and are) decertified for 
failure to live up to the program's standards.
    2. Professional Loggers Program.--The NH Timberland Owners 
Association, in cooperation with the University of New Hampshire's 
Thompson School of Applied Sciences and UNH Cooperative Extension, runs 
a voluntary certification program for the State's professional logging 
community. The goal of the program is to provide professional 
development opportunities for timber harvesters, make them safer and 
more aware of environmental concerns. To become certified through this 
program, loggers must complete coursework in safe felling, first aid, 
fundamentals of foresting, and timber harvesting law. A major component 
of the timber harvesting law class focuses on water quality, and is 
conducted by instructors from the NH Department of Environmental 
Services. Through this program, the ``on-the-ground'' work force in the 
forest industry is aware of, and is better able to implement, actions 
to protect water quality during a timber harvest. To date, over 650 
loggers have become certified through the Professional Loggers Program, 
and another 400 have begun the certification process.
    3. Best Management Practices.--The State of New Hampshire has in 
place Best Management Practices for Erosion Control on Timber 
Harvesting Operations in New Hampshire. These BMPs provide a framework 
for cooperation between forest industry, landowners and the government 
to protect the State's water resources. The Best Management Practices 
provide information for landowners, loggers and foresters on reducing 
or eliminating sedimentation from truck haul roads, skid trails, and 
log landings. Further, they explain erosion control devices, steam 
crossings, and the law as it applies to timber harvesting. The 
overriding goal of the BMPs is to ``keep sediment out of the streams''.
    4. Landowner Workshops.--In cooperation with the Natural Resource 
Conservation Service, the NH Timberland Owners Association has 
conducted workshops on Best Management Practices for Timber Harvesting 
and Forest Road Building for landowners and municipal officials. These 
workshops, which include significant field components (such as wetland 
identification, soil characteristics, and road construction), provide 
an opportunity for learning and collaborative problem solving, and 
deliver a greater depth of understanding of the issues for all parties.
    5. Sustainable Forestry Initiative.--As part of a national program 
sponsored by the American Forest and Paper Association, several of New 
Hampshire's largest private landowners and forest products 
manufacturers have made a commitment to practice sustainable forestry 
on their own land and encourage sustainable forest management on land 
that they purchase wood from. One of the standards that participants in 
this program commit to is protecting ``water quality in streams, lakes 
and other water bodies by implementing riparian protection measures 
based on soil type, terrain, vegetation, and other applicable 
factors.'' In New Hampshire, participants in the SFI have established a 
process for investigating and correcting activities that members of the 
public believe are inconsistent with the practice of sustainable 
forestry.
    Clearly, New Hampshire's forestry community has made, and continues 
to make, a commitment to protect water quality. The numerous programs, 
and the work of thousands of landowners, demonstrate our commitment to 
maintaining the quality of the State's streams, lakes and rivers.
    Unfortunately, the Environmental Protection Agency has recently 
proposed strict new rules that may undermine these efforts. As part of 
rules proposed last August, the EPA may reclassify some forestry 
activities from ``non-point source'' activities to ``point source'' 
pollution activities, placing forestry under an entirely new regulatory 
regime. The EPA proposal has the potential to treat forestry 
activities, including those that contribute significantly to wildlife 
habitat, the same way as factory discharge is treated. Prior to 
beginning a timber harvest, landowners could be required to receive a 
National Pollutant Discharge Elimination System (NPDES) permit, a 
process that may well take over a year. This would also open landowners 
up to costly nuisance lawsuits by those that oppose timber harvesting.
    New Hampshire's private landowners, who have a history of 
contributing to the State's water quality, are threatened by this 
bureaucratic, top-down proposal. In a letter to the EPA, the NH 
Department of Environmental Services stated that ``additional Federal 
regulation of these activities would only add an unnecessary regulatory 
burden to the forest industry without any clear environmental 
benefit.'' While it is difficult to understand the benefit of this 
proposal to New Hampshire, it is easy to grasp the downside.
    One of the problems with the EPA proposal is that it is made in 
isolation without connecting to the larger environmental and economic 
system. New Hampshire is a rapidly developing State, and forest 
landowners--particularly those in the southern tier of the State are 
constantly under economic pressure to convert forestland to other uses. 
We permanently lose over 20,000 acres of working land each year to 
development. Managing forestland for economic return is a marginal 
business, and requites a long-term commitment on the part of a 
landowner. Actual imposed costs or landowner expectations of future 
costs will be capitalized into land values. The subsequent reduction of 
forest land values relative to other land uses (typically development) 
will increase the pressure to convert to these other land uses. The 
EPA's proposal fails to recognize that, given the choice between 
bureaucratic red tape and development, many landowners may be forced to 
develop their land. By failing to work with landowners and forest 
industry, the EPA may well engage the ``law of unintended 
consequences'', contributing to the rapid loss of forest land and the 
many public benefits it provides. In effect, the EPA's proposal to no 
longer exempt silviculture will ultimately lead to decreased water 
quality.
    This is particularly true of small, non-industrial landowners, upon 
which this proposed regulation would fall quite heavily. Non-industrial 
private landowners, many of them who harvest infrequently and have 
responsibly managed their holdings for generations, own almost 70 
percent of New Hampshire's forestland. Many of these landowners, 
estimated by the USDA. Forest Service's recently released Forest 
Inventory and Analysis to number 84,000 in New Hampshire alone, do not 
have the technical expertise necessary to comply with complicated 
Federal requirements. While the impacts of the EPA's TMDL proposal is 
of enormous concern to our entire industry, it is these landowners that 
will feel its impacts fastest and hardest.
    I urge you to use your influence as Chairman to help the EPA 
recognize the positive, proactive steps that the forest industry and 
forest landowners have taken to protect water quality. Instead of 
pursuing their Washington-based, top-down approach, the EPA would 
accomplish more by working with citizens and industry to support and 
expand upon existing activities to protect our water resources. By 
encouraging collaborative approaches, rather than the confrontational 
actions proposed by the EPA, the Environment and Public Works Committee 
can take a leadership role in developing solutions that work.
                               __________

  STATEMENT OF CHARLES R. NIEBLING, SENIOR DIRECTOR, POLICY AND LAND 
    MANAGEMENT, SOCIETY FOR THE PROTECTION OF NEW HAMPSHIRE FORESTS

    Thank you Mr. Chairman, members of the committee. I am Charles 
Niebling, Senior Director for Policy and Land Management with the 
Society for the Protection of New Hampshire Forests. Founded in 1901, 
the Forest Society is a non-profit conservation organization dedicated 
to the wise use of New Hampshire's natural resources, and their 
complete protection in places of special environmental or scenic 
quality. In addition to our role as a land trust and conservation 
advocate, we also own and sustainably manage 33,000 acres of productive 
woodlands in 123 reservations across the State. We not only preach good 
forestry and conservation, but we practice it as well.
    I greatly appreciate the opportunity to appear before the Senate 
Committee on Environment and Public Works to testify on behalf of our 
9,500 members on the U.S. Environmental Protection Agency's proposed 
TMDL and NPDES rules. I am here today to offer our general support for 
new directions addressing agricultural and silvicultural issues set 
forth in the May 1, 2000 joint statement issued by the U.S. Department 
of Agriculture (USDA) and EPA, but to also express views about further 
changes that need to be made.
    Throughout our 99-year history, the Forest Society has championed 
the importance of water quality as a core part of its land conservation 
and forest management work. Our earliest campaign, the creation of the 
White Mountain National Forest, was fought and won not simply because 
trees were being stripped from New Hampshire's mountains. The 
determining issue was that disrupted water flows caused by clear 
cutting near the headwaters of the Merrimack River were damaging 
textile mills as far south as Massachusetts.
    Since then, an undercurrent of water protection has run through 
Society programs. In the early 1960's, we spearheaded a coalition 
called the New Hampshire Better Water Committee, that succeeded in 
passing the nation's second State level dredge and fill law to regulate 
wetlands impacting activities. A few years later the coalition pushed 
through the first legislation in the Nation requiring statewide review 
of septic systems.
    Later in the 1960's and 1970's, we championed the establishment of 
local conservation commissions, and sought legislation giving them 
authority to review wetlands permits issued in their communities. In 
the 1980's and 1990's, we helped found and housed the NH Rivers 
Council, and lobbied for passage of the Rivers Management and 
Protection Program, and the Shoreland Protection Act. Through our 
educational efforts, we have also worked hard to promote the use of 
best management practices in forestry for over three decades.
    And earlier this year, after a 2-year legislative effort undertaken 
in close cooperation with the NH Department of Environmental Services, 
we saw through to passage the Water Supply Land Protection Program. 
This legislation funds a State-matching grants program to 
municipalities to enable permanent land conservation around public 
water supply wellheads or surface water reservoirs. It is one of the 
first such program specific to public water supplies in the country.
    When we submitted our comments on the proposed TMDL rule in 
January, we indicated that we opposed the proposed rule because we did 
not support the reclassification of forestry operations from the 
nonpoint source category to the point source category. We also opposed 
the removal of authority for monitoring TMDL's from the State to the 
Federal level. We argued that placing too heavy a regulatory burden on 
private landowners, especially in a State like NH where development 
pressure on our forests is very great, might predispose land to 
development. From a long-term nonpoint source water quality or forest 
sustainability standpoint, Mr. Chairman, the worst forestry operation 
will always be better than the best parking lot or residential 
subdivision.
    Thus we were encouraged this week when we received a copy of the 
joint statement issued by USDA and EPA, announcing modest changes in 
the proposed rule. It would seem that EPA is listening to the people of 
NH and thousands of others around the country, who believed that the 
original draft rule simply went too far.
    We want to particularly commend EPA and USDA for formally 
recognizing the following points in their joint statement:
     That State governments and local citizens should take the 
lead in developing pollution budgets for impaired waterways;
     That voluntary and incentive-based approaches are the best 
way to address nonpoint source pollution;
     That EPA will work with States that may need help in 
developing forestry BMP programs for a period of 5 years before they 
start issuing NPDES permits; and
     That only if a State does not have an approved forestry 
BMP program after 5 years, will the State or EPA have the discretion to 
issue NPDES permits.
    Unfortunately from out standpoint, the joint agreement does not go 
far enough. Our greatest concern is that the final rule will continue 
to define forestry activities as a point source category, controverting 
25 years of Clean Air Act statutory interpretation. We are also 
concerned that EPA wants to have the authority to approve State BMP 
programs based on as yet undefined criteria.
    Until and unless the rule is modified to affirm forestry activities 
in the nonpoint source category, the Forest Society cannot support it. 
We are encouraged by the movement EPA has shown in recent weeks. 
Regardless of whether EPA makes further modifications, we hope that 
they will re-notice the draft rule for further public comment.
    The Clean Air Act will go down in history as one of our nation's 
most successful environmental laws. The improvements to New Hampshire 
made through regulation of point source pollution are extraordinary and 
well-documented.
    Now we face the far more complex challenge of reducing nonpoint 
source pollution. The Forest Society believes that New Hampshire's 
approach of aggressive promotion and education of voluntary forestry 
BMP's has worked relatively well, and can continue to work.
    Are there problems with some forestry operations? Absolutely. We do 
not believe more burdensome regulations will necessarily solve the 
problem.
    Mr. Chairman, we support the Water Pollution Enhancements Act of 
2000 because we believe it targets Federal assistance and support where 
it will have the greatest positive impact. Three specific needs in New 
Hampshire that could be addressed through provisions of this act are:
     1. Improved compliance education of forestry BMPs;
     2. Support for a stronger enforcement capability within 
the Water Resources Division of our Department of Environmental 
Services and the Division of Forests and Lands within our Department of 
Resources and Economic Development; and
     3. Support for BMP compliance monitoring on active forest 
harvesting operations.
    Thank you for the opportunity to testify on this important issue.
                               __________

      STATEMENT OF JOEL SWANTON, MANAGER, FOREST POLICY CHAMPION 
    INTERNATIONAL FOREST RESOURCES, NORTHEAST REGION, BUCKSPORT, ME

    Senator Smith and Senator Crapo, my name is Joel Swanton. I am a 
resident of Holden, Maine and represent Champion International as 
manager of Forest Policy in the Northeast region. Champion is an 
integrated forest products company with forestland, lumber, and paper 
manufacturing facilities throughout the United States, Canada, and 
Brazil.
    Here in the northeast we are responsible for sustainable forest 
management of over 1 million acres of forestland, part of a land 
ownership of 5 million acres of forestland in the U.S. We, and the 
communities we live in, depend directly on the health and productivity 
of our forests for our livelihood. One of the core values and 
responsibilities of forestland ownership is water quality. We take our 
responsibility for water quality seriously. Our ownership in New 
Hampshire, 170,000 acres just north of here, includes the headwaters 
for the Connecticut and Androscoggin Rivers. Both are important bodies 
of water in this region.
    We appreciate your invitation to testify before the committee on 
our concern about the impact of the EPA's proposed TMDL and NPDES rules 
on our operations and regarding our support for your legislation, S. 
2417.
    EPA's proposed changes to the regulatory treatment of silviculture 
under these new rules are not justified either in terms of need or in 
terms of improved environmental benefits. In our region, silviculture 
is not a significant threat to water quality. Successful voluntary and 
regulatory initiatives are already in place here to ensure that 
silviculture activities are undertaken with measures that protect water 
quality. These programs would be jeopardized by EPA's proposed rule 
changes. And while we appreciate Mr. Fox's efforts to improve the 
proposed rule, EPA's recent joint announcement with USDA on changes to 
the treatment of forestry operations falls quite short of what we view 
as improvements.
    Champion's forest management activities in the northeast region 
include harvesting, forest management road construction, and other 
silvicultural activities to improve the health and productivity of our 
forests (planting, thinning of young stands, herbicide treatments to 
control competing vegetation, etc.). All of these activities have 
planning and monitoring components that address water quality.
    Prior to beginning any activity on our lands, our foresters develop 
plans incorporating State regulations, our riparian guidelines and any 
applicable Best Management Practices (BMPs). We consider the 
silvicultural prescription, the timing or season of the operation, the 
type of soil and potential for erosion and the type of equipment or 
operation. In Maine, we abide by State regulations which govern the 
amount of wood we can remove in a streamside management zone. Best 
Management Practices developed with the State govern, for example, how 
we build roads, how we build culverts, and how a logger can drive a 
skidder through the woods during harvest so that it does not create a 
channel that might cause soil erosion into a stream. All of these 
factors are assessed with a focus on preventing a negative impact on 
water quality.
    Once activity begins, we monitor and inspect operations on a 
regular basis. Should a water quality issue arise, we are able to 
address it quickly. Should weather conditions change, such as the early 
spring thaw we had this year, we can move or modify our operations 
quickly to assure water quality is not compromised. Ongoing monitoring 
of our property by State natural resources agencies and informal 
monitoring by members of the public also assures that if a water 
quality concern arises, we are aware of it.
    We also conduct a broader annual water quality BMP audit of our 
operations in this region, often involving outside natural resource 
professionals. These audits are designed to provide an extra layer of 
review and identify areas for improvement in our operations.
    In addition to what is required by law, Champion and the forest 
industry have a voluntary national program in place that addresses 
water quality--the Sustainable Forestry Initiative (SFIsm). 
The SFI is a comprehensive set of standards that includes measures that 
integrate the growing and harvesting of trees with the protection of 
wildlife, plants, soil, air, and water quality. Under SFI, Champion 
must meet or exceed all established BMPs and State water quality 
regulations under the Clean Water Act.
    SFI requires that we establish riparian protection measures for all 
streams and lakes. Champion has addressed this through the 
implementation of a landscape classification system called Forest 
Patternssm. One component of Forest Patterns is the 
designation of restricted management or special value areas where the 
first priorities for our management activities are the protection of 
water quality, wildlife habitat, or recreation. Here we have 
implemented riparian management guidelines that in most cases exceed 
the existing State standards. Champion was the first company in the 
U.S. to commit to third party verification of our performance under the 
SFI standards. This formal third party audit reviews both the systems 
we have in place to protect water quality as well as our performance on 
the ground. Champion has engaged PricewaterhouseCoopers to conduct 
these audits. Our operations in the northeast will be reviewed this 
October for the fourth time since 1996.
    Champion also supports efforts to encourage other landowners to 
protect water quality. Our procurement foresters require that loggers 
and landowners that sell wood to our mills comply with State water 
quality regulations and BMPs. Our foresters audit these operations for 
performance and work with contractors to take corrective action if 
needed.
    Under our commitment to SFI, we also sponsor and support training 
for loggers and landowners that addresses water quality BMPs and 
regulations. In Maine and New Hampshire, we participate in an SFI 
process for the public to raise concerns about forest practices that 
appear to be inconsistent with SFI principles. By calling 1-888-SFI-
GOAL, people can identify a site-specific area of concern, such as 
water quality, and be assured of followup on that operation by a 
forester that will focus on education and change in behavior, if 
necessary.
    EPA nationally and regionally recognizes that silvicultural and 
forest management activities are not a significant source of water 
quality impairment. I believe due in great part to the efforts I have 
just described. At a March 21, 2000 meeting with members of the New 
Hampshire forestry community, EPA's New England Region Associate 
Director of Surface Water stated that ``silviculture in New England is 
not a threat to surface water.''
    Here are some statistics to illustrate:
     Silviculture is at or near the lowest ``leading source'' 
of pollution or impairment for rivers and streams shown in summary 
charts in each of EPA's section 305(b) reports from 1988 through 1994. 
In the 1996 report, EPA dropped silviculture from the chart as one of 
the seven leading sources of impairment to rivers and streams.
     The total number of river and stream miles impaired due to 
silviculture declined 20 percent between 1994 and 1996.
     The number of river and stream miles classed as ``major 
impairment'' due to silviculture dropped 83 percent from 1988 to 1996.
     Silviculture is not even included in the summary charts of 
leading sources of impairment to lakes, reservoirs, estuaries or ocean 
shoreline waters according to EPA's 305(b) reports.
     None of the 305(b) reports list silviculture as a public 
health or aquatic life concern nor a source of groundwater impairment.
    We think this network of regulatory and voluntary oversight works 
well and the statistics tell us that we are right. From our vantage 
point, EPA's proposed rule and the recent revisions that EPA announced 
with USDA are just plain unnecessary. Worse, they could well cost us 
the gains we have made by jeopardizing the State programs and 
drastically increasing our exposure to citizen lawsuits.
    As you have heard many times these last months, under the EPA's new 
rule landowners could be required to obtain Federal clean water permits 
for forestry operations, including harvesting, road construction, and 
other silvicultural activities if they take place near an impaired 
waterway. Inclusion of silvicultural activities as point source 
discharges subject to TMDLs in impaired waterways could pit forest 
landowners and sparsely populated rural communities against heavily 
populated municipalities when determining TMDLs. The cost, time delay 
and red-tape involved with such a permit would make many activities 
cost prohibitive and we think could actually encourage landowners to 
convert their land to non-forestry uses with a greater potential for 
negative impact on water quality.
    A Federal permit process would invite intervention and lawsuits by 
special interest groups to challenge private forestry practices. Large, 
private forestland ownerships in the northeast region have been 
targeted by national and regional preservation groups for conversion to 
public ownership and elimination of the timber harvesting and 
management that sustains our economy. Since 1995, numerous legislative 
and public policy initiatives to ban or restrict forest management 
practices have been initiated in attempts to make private ownership of 
these lands economically un-viable. This rule would provide a valuable 
tool for that agenda.
    Consider simply the impact on our operations just from the NPDES 
permit process: Last winter, we had heavy snow in one of our winter 
operation areas near Pittsburgh, New Hampshire. We decided that we 
needed to move our harvesting crew to other areas with lower snow depth 
for the safety and productivity of those harvesting contracts. How long 
would it have taken us to get a new permit under EPA's proposed rule? 
Another example: This year we had an early spring thaw. We always shut 
down our operations during this time--or ``mud season'' as we call it 
here, because the soil gets saturated with snowmelt. These conditions 
can create ruts which can channel snowmelt into streams causing 
siltation. Prior to the onset of mud season, we move our operations to 
environmentally safe areas and then shut down. This year, the timing 
was different--the thaw came early. The flexibility to respond to 
weather changes to minimize risk could be lost under this permit 
proposal.
    One final example. If and when the market changes for a particular 
tree, we need to quickly make decisions about how to respond. Last 
summer, the regional market for hardwood pulpwood had so much supply 
that the price was depressed. We needed to decide quickly whether we 
should leave our hardwood pulpwood stands slated for harvest in place, 
or harvest at a loss, or shut down or move. Again, would we have that 
kind of flexibility if we were faced with getting an NPDES permit? I 
can only wonder about trying to get a NPDES permit to deal with an 
event that required an immediate emergency response like a fire or a 
pest infestation.
    Proposed revisions to the rule announced by EPA in consultation 
with USDA this week still do not address these concerns:
     Most importantly and I say with great emphasis: The 
revised proposal still calls for changing the designation of 
silvicultural activities from non-point source category to point 
source. We would still be subjected to a Federal NPDES permit. There is 
no justification for this.
     The revised approach is even more expansive than the 
proposed rule. EPA and USDA now claim authority to review and approve 
entire State forestry programs as opposed to reviewing each individual 
TMDL submitted by the State. Through a public process to develop 
national forestry practices guidance, EPA and USDA now intend to 
federally dictate the development, implementation and enforcement of 
virtually every forest management activity conducted on all private 
forest lands in the country. In other words, if State forestry program 
requirements for activities such as tree planting, harvesting, 
prescribed burning, pest and fire control, surface drainage, road 
construction and maintenance, thinning, cultural treatment, site 
preparation and nursery operations are inconsistent with Federal 
standards, EPA will impose Federal NPDES permits.
     Through this Federal oversight, EPA and USDA have for the 
first time provided environmental non-governmental organizations the 
ability to dictate how forest management operations should be conducted 
on private forest lands throughout the country. This could include 
decisions about what species of tree to plant, what type of forest 
management operation is conducted, the width of a streamside management 
zone or if harvesting should even be allowed.
     EPA and USDA do not specify what precise criteria will 
qualify a State for having ``reasonable assurances'' that the State 
will regulate forestry activities. This is a blank check for EPA to 
approve State programs based on undefined criteria.
     The revised approach may trigger Endangered Species Act 
consultation with USF&W and NMFS when reviewing State forestry programs 
for approval (not a current requirement). This jeopardizes the existing 
programs and creates great uncertainty for forest landowners and States 
as to whether State forestry programs are acceptable or not.
    While we appreciate the attempt by EPA and USDA to address our 
concerns, we do not believe that they address the fundamental test. The 
real test for whether this proposed rule and the recent changes are 
needed at all lies with this question: Will this result in any improved 
ability of EPA, the States, or landowners to prevent or correct water 
quality problems from forestry operations? The answer is no.
    We do not believe this rule should be finalized.
    Senator Smith and Senator Crapo, we support your efforts to address 
water quality issues in a more meaningful and productive way than EPA's 
proposed rules. Your legislation to improve State funding and data 
quality makes sense and we think speaks to some of the real issues 
here. We also support legislation introduced by Senators Lincoln and 
Landrieu to codify the existing non-point regulatory status of 
silviculture and we hope you will consider them as an important part of 
this debate when you hold hearings on your bill.
    Thank you, again, for the opportunity to testify.
                               __________

  STATEMENT OF TOM BUOB, EXTENSION EDUCATOR, UNH COOPERATIVE EXTENSION

    I have spoken to many farmers in the Connecticut River watershed 
about nutrient management and the effects of the regulatory guidelines 
from EPA. Their major concerns seem to be that too much regulation will 
not address the nonpoint source pollution issues, and it will result in 
increased costs for agricultural production. Regulation is (can be) 
somewhat complex resulting in confusion, frustration, and undue 
paranoia.
    I realize that many people do not give much credence to Voluntary 
methods (stewardship) of reducing nonpoint source pollution. However, 
as an extension educator in the crop and soil (nutrient) management 
area for more than 20 years, I do not believe that more regulation will 
be as effective as efforts based on educational programs (research, 
demonstration, adoption) in protecting or improving the environment. 
Farmers are interested in protecting the environment because they and 
their families live where they work and are usually the first ones to 
be affected. The farmers are already doing many things correctly and 
have been very interested in improving management techniques if they 
will make a difference.
    The USDA agencies (UNH Cooperative Extension, NRCS, FSA), county 
conservation districts and local conservation groups have been working 
together to minimize the impact of agriculture on the environment. 
Through on farm research, demonstration and educational efforts, 
farmers have reduced nutrient loading and the risk of nonpoint 
pollution.
    A recent effort (CSREES Water Quality Grant) is focusing on 
expanding this project throughout the NH portion of the Connecticut 
River Watershed.
    As an educator in the crop and nutrient management area, I do not 
believe that more regulation will be as effective as an educational 
program (research, demonstration, adoption) in protecting or improving 
the environment. Farmers are interested in protecting the environment 
because they and their families (since they live where they work) are 
usually the first ones to be affected. The farmers that we have worked 
with are already doing many things correctly and have been very 
interested in improving management techniques if they will make a 
difference.
    Thank You.
                               __________

    STATEMENT OF NANCY L. GIRARD, ON BEHALF OF THE CONSERVATION LAW 
                               FOUNDATION

    Good afternoon, for the record I am Nancy L. Girard, and I am the 
Vice President and Director of Conservation Law Foundation's New 
Hampshire Advocacy Center. Thank you for this opportunity to testify 
before the committee to address the Environmental Protection Agency's 
(EPA) proposed revisions to regulations implementing the Clean Water 
Act's ``Total Maximum Daily Load'', ``National Pollutant Discharge 
Elimination System'', and ``Water Quality Standards'' programs. As the 
committee is well aware, EPA proposed substantial rule revisions to 
these programs on August 23, 1999. 64 Fed. Reg. 46012-46055 and 46058-
46089. Like numerous interested parties, Conservation Law Foundation 
(CLF) filed comments with EPA to address concerns with the proposed 
revisions. In our comments, CLF strongly opposed the proposed revisions 
and requested that EPA withdraw them and reconsider its approach.

               DESCRIPTION OF CONSERVATION LAW FOUNDATION

    By way of background, let me describe CLF. The Conservation Law 
Foundation (``CLF'') works to solve the environmental problems that 
threaten the people, natural resources, and communities of New England. 
CLF maintains an advocacy staff including over 25 lawyers and 
scientists. CLF's advocates use law, economics, and science to design 
and implement strategies that conserve natural resources, protect 
public health, and promote vital communities in our region. Founded in 
1966, CLF is a non-profit, member-supported organization with over 
10,000 members. CLF maintains advocacy center offices in Maine, New 
Hampshire, Vermont, and Massachusetts. CLF advocates focus on issues of 
national, regional or statewide significance that affect these States 
as well as Connecticut, Rhode Island, and New York. We firmly believe 
that EPA's proposed regulatory revisions will significantly affect 
efforts throughout New England, and nationally, to correct major water 
pollution problems and clean-up watersheds.

                     WATER POLLUTION IN NEW ENGLAND

    New England, like many other regions, continues to have significant 
water pollution problems. Each of the New England States has identified 
waters that fail to meet State water quality standards. These pollution 
problems include: nutrient pollution that imperils recreational use and 
aquatic habitat in our lakes, ponds and coastal areas, sedimentation 
that harms important fisheries, disruption of natural river flows, and 
toxic pollution and pathogens that threaten public health. EPA and the 
States must enhance their efforts to document and correct these 
critical pollution problems.

                        SUPPORT FOR TMDL PROGRAM
    As an important component of the approach to clean-up New England's 
polluted waters, CLF strongly supports the Clean Water Act's TMDL 
provisions set forth at 33 U.S.C. Sec. 1313(d). Over a quarter-century 
ago, Congress enacted the 1972 Clean Water Act, which established 
detailed provisions, designed to ensure prompt cleanup of the nation's 
waters. Indeed, water-quality-based effluent limitations were to be 
achieved over twenty-two years ago (by July 1, 1977), 
Sec. 301(b)(1)(C), water quality suitable for fish, wildlife, and 
recreation was to be attained over 16 years ago (by July 1, 1983), 
Sec. 101(a)(2), and discharges were to be eliminated over 14 years ago 
(by 1985). Sec. 101(a)(1).
    Central to achievement of these timelines, Sec. 303(d) of the 1972 
Act mandated the total maximum daily load (TMDL) program, which is 
designed to ensure prompt identification of impaired and threatened 
waters, and the setting of maximum daily pollutant loads for those 
waters. Under the timeline intended by Congress, pollutants suitable 
for load calculation were to be identified by October 1973, States were 
to identify impaired waters and submit TMDLs for those waters by April 
1974, EPA was to approve or disapprove that identification and those 
TMDLs by May 1974 and (in the event of disapproval) was to establish 
TMDLs by June 1974. Thus, TMDLs (whether EPA-approved or EPA-
established) for all impaired waters were to be in place twenty-five 
years ago.
    This clear congressional intent remained unfulfilled, and remains 
unfulfilled to this day. The cause is not far to seek: the States and 
EPA have massively failed to comply with their statutory obligations. 
Alaska Center for the Environment v. Reilly, 796 F. Supp. 1374, 1379 
(W.D. Wash. 1992), aff'd, 20 F.3d 981 (9th Cir. 1994) (``The only 
`consistently held interpretation' that the EPA has demonstrated with 
respect to the CWA's TMDL requirements has been to ignore them.''). 
Only recently, in response to numerous lawsuits filed across the Nation 
challenging the inaction of EPA and the States, have initial steps been 
taken to implement the TMDL provisions of the CWA. Only with 
significant additional funding and effort devoted to implementation 
will the TMDL provisions of the CWA achieve their initial purpose and 
promise. The proposed regulatory provisions will simply confuse and 
undermine implementation efforts.

                   OPPOSITION TO REGULATORY REVISIONS

    The TMDL requirement is one of the cornerstones of the CWA. In 
order to assure that remaining water pollution problems are effectively 
addressed, it is critically important that the TMDL program not be 
undermined or weakened. Instead, the program should be strengthened and 
fully implemented. The first major step taken in actually implementing 
these long-ignored provisions of the CWA should not be to substantially 
revise existing regulatory requirements.
    CLF's Comments to EPA raised several important substantive issues 
including that the rule revisions would:
     unlawfully delay development of TMDLs;
     unlawfully abdicate EPA's responsibility to develop TMDL's 
when States fail to;
     undermine public participation in TMDL development;
     unlawfully add factors for determining whether 
agricultural and silvicultural activities fall within the CWA's 
definition of point source discharge of a pollutant;
     create an inadequate and unlawful ``offset'' or 
``trading'' program that would allow polluting discharges to continue 
without meeting water quality standards; and,
     exempt existing discharges from compliance with water 
quality standards even if they expand their discharge up to 20 percent.
    Each of these concerns address facial violations of specific 
statutory requirements of the Clean Water Act. Unless each of them is 
addressed, and EPA's approach substantially revised, the proposed 
regulatory revisions would cause endless legal challenges and 
interminable delay in correcting critical water pollution problems.

               NEED FOR MORE PUBLIC COMMENT ON THE RULES

    Due to the complexity of the proposed regulatory revisions, their 
broad scope, and their fundamental flaws, EPA should revisit its 
approach and provide an additional opportunity for public comment. 
Indeed, each of the provisions of the proposed revisions could warrant 
an independent rulemaking. As a result, CLF has requested, and 
continues to hope for an EPA withdrawal of the proposed revisions with 
a fresh look at needed improvements in the TMDL program.
    CLF is very concerned with recent written and oral EPA statements 
to Members of Congress, including Senator Smith, highlighting 
potentially major changes to the initial rule proposal without 
providing any detail or specificity regarding possible changes. Given 
the likely major revisions that will occur in a final rule, CLF 
believes that the rule revisions should be noticed for additional 
public review and comment. Without an additional opportunity for public 
comment, we are concerned that all interested parties will be deprived 
of an opportunity to meaningfully to express their views.

                               CONCLUSION
    In conclusion, CLF continues to oppose EPA's proposed regulatory 
revisions. Without substantial changes, the proposed revisions will 
violate specific requirements of the Clean Water Act, cause major 
confusion and unnecessary controversy, and massively delay clean-up of 
polluted waters. The TMDL program should be implemented not weakened. 
Adoption of the proposed revisions without substantial changes would 
represent a major setback for efforts to clean-up polluted waters 
across the nation.
                                 ______
                                 
    STATEMENT OF SCOTT R. MASON, COOS COUNTY FARM BUREAU PRESIDENT, 
                            NORTHWINDS FARM

    I would like to thank you for providing this opportunity to speak 
on the EPA proposed TMDL and AFO-CAFO rules. I am Coos County Farm 
Bureau President, a vice president for NHFB, Chair of the AFO-CAFO 
committee, Chairman of AFBF Dairy Committee, a member of Coos County 
Conservation District, member of the State Technical Committee for NRCS 
and serve on a by-state committee developing certification standards 
for Nutrient Management Planners. I am also a commercial farmer milking 
150 registered Jerseys.
    I would also like to thank Senators Smith and Crapo for introducing 
Senate Bill 2417. This bill shows some common sense. EPA is trying to 
treat the nonpoint pollution problem the same way they have dealt with 
the point source pollution problem. It is my understanding that 
Congress saw a difference in the way the two should be dealt with when 
the Clean Water Act was written. If the EPA is allowed to proceed with 
TMDL and AFO-CAFO as proposed, American Agriculture will be greatly 
reduced. The bill points out that there is a lack of funding to deal 
with nonpoint problems, both at the State level and the landowner 
level. EPA is unwilling to look at the progress Agriculture has made 
through true voluntary programs. EPA's idea of voluntary program is you 
will voluntarily conform or we will fine you into voluntary compliance. 
Natural Resources Conservation Services have a long tradition of true 
voluntary conservation programs. As with any government program though, 
there have been many programs that time has proven to be just plain 
wrong. For example, SCS encouraged farmers to plant Multiflora Rose as 
a living fence. The farmers who did have left their children with a 
noxious weed that will completely engulf an open field. Then, of 
course, SCS used to give away Super Phosphate to increase the 
phosphorus in the manure farmers spread on their fields. Now we are 
told that it is the farmers' fault that there is too much phosphorus 
built up in our fields. Most of us can still remember all the wetlands 
that were drained with SCS technical expertise.
    I bring these examples up not to pick on NRCS but to illustrate 
that Government does not always know what is best. I do not believe 
that EPA will cure Agriculture's problems through TMDL and AFO-CAFO. 
Just look at the EPA regulations on town dumps--burn it, bury it, haul 
it and seal it?
    There is a major difference between Agriculture and Industry. Ag 
pollution is not profitable to the farmer. Any farmer that is a 
livestock/crop farmer needs his or her nutrients in the field to grow 
the crop. Manure may be a by-product of livestock, but it is also an 
input for crop farming whereas in industry pollution is a cost to get 
rid of as cheaply as possible. If you come to my farm, test the water, 
and find nutrients that have come from my farm then I'm losing money. 
That is also true with pesticides. At $40 per gallon, I want the spray 
to be in the field working. This is why nonpoint Ag pollution control 
can and should be handled differently than industrial pollution.
    In order to make good policy decisions concerning the relationship 
with Forestry, Agriculture, and the environment you must also look at 
the traditional cost share programs of NRCS. Funding is the major 
problem with trying to improve water quality today. This administration 
has replaced funding of government programs that actually clean up the 
environment and reduce possible contamination with programs that 
educate the general public and create more government bureaucracies. 
The current EQIP funding for New Hampshire is less than half of what 
the old ACP program was. However, the Connecticut River is listed as a 
Historic river and Silvio Conte is building learning centers. Not only 
has funding levels gone down but bureaucracy has gone up. It is a 2-
year process for money to be made available to the farmer through EQIP. 
Money is made available by priority water shed, within which watershed 
projects are rated, for environmental impact. It is possible for a 
better quality project not to be funded because it is outside of a 
priority watershed. Most farms in NH are not eligible for funding 
because they are outside of the priority watershed. Or the money 
available for their watershed is not sufficient to do the project. 
There are only two watersheds in NH currently receiving enough money to 
build a manure storage system for a family sized dairy farm. A farmer 
can only apply once every 5 years for cost share money. That means that 
he must apply for funding of all the projects he needs to complete with 
in the next 5 years at the time he applies. In order to comply with 
both AFO-CAFO and TMDL requirements some farms would need almost the 
entire EQIP funding for the State of New Hampshire. However, another 
rule would cap the cost share at $50,000 per farmer per contract. 
Remember you do not actually have to be polluting to be held liable in 
citizen litigation, all they need to prove is that you are not in 
compliance.
    We have seen a growth in EPA/DES funding of farm projects. However, 
to qualify for funding, the watershed must be identified as a problem 
area and the individual farm must be identified as a problem. DES has 
assured farmers that they will not penalize farmers for participating 
in these programs, however I question whether the farmer is creating a 
public record of environmental misdeeds that could be later used 
against him in a citizen litigation. This has been done in Washington 
State in at least one of the citizen litigation suits out there.
    Many people question why the government should help farmers in 
saving soil and reduce nutrient run off. I would like to share with you 
a brochure from NRCS. This top photo is a picture of my farm. It 
depicts a major streambank blow out. That occurred 2 years ago during a 
100-year flood. . . . The two NRCS field people told me that I'd never 
be able to get the permits to fix the problem, and if I could there 
would be no cost share money, and it would probably exceed $100,000. I 
am no engineer but I think that my bank eroded because of a sand bar 
that has developed across the river. In the old days a farmer would go 
down into the river and remove the sand bar that has developed with his 
loader. Regulation no longer allows for that so I lost 2 acres of field 
20 feet deep. I think that sediment is more than the sediment created 
by cleaning out the sand bar. Government regulation has taken a $1000 
job and turned it into $100,000. Furthermore, the flood damage that we 
experience up here is increased by flood control that protects cities 
down south.
    I'd like to take a few minuets and talk about my experience on the 
SBREFA panel that reviewed the current proposed changes to the AFO-CAFO 
regulations. Most of the farmers are aware that the EPA currently 
classifies all farms over 1000 animal units as a CAFO. EPA is currently 
in the process of reducing the minimum size of a CAFO to 300 animal 
units. They also would like to change the definition to include 
replacement heifers on a dairy farm. If this Change occurs in the 
regulation then all dairies above 150 cows will be classified as CAFOs. 
What this does is subject the family farmer to citizen litigation. 
Congress allowed citizen litigation with point pollution sources. I am 
guessing that it was because Congress felt that a private citizen 
needed more power to defend him or herself from corporate America. But 
to now allow ``citizens'', maybe more aptly put as multimillion or 
billion dollar environmental organizations with well paid attorneys, to 
sue family farmers seems a bit unfair. Most Farmers will choose to 
either sell out or settle out of court. Farmers do not have the money 
to fight these cases. The legal fees alone can run into the hundreds of 
thousands of dollars. EPA is also looking at mandatory 100 foot set 
backs from water for spreading manure, yet they allow me to spread 
sludge to within 10 meters of the river. I think this difference 
between these two set backs have more to do with cows not voting than 
good quality science.
    The SBREFA panel is charged with giving small business input into 
the regulation process prior to the final stages. I would charge that 
EPA might have lived up to the law by hosting the panel, however I do 
not believe that they have abided by the intent of the law. The entire 
process was held via telephone conference. They held a pre-session with 
over 70 people on line. This session was held during and after a 
hurricane. Some farmers in North Carolina were out putting their farms 
back together. I was called out by the railroad to help clear tracks. I 
know that the Government is important, however if they really want 
small farmers' input then they have to be willing to reschedule a 
telephone conference due to a hurricane. At this point they asked for 
written input. Then they selected the panel. I received an incomplete 
package of information New Years Eve. The next telephone conference was 
scheduled for January 5. Please remember that New Year's day fell on 
Saturday and the EPA was closed Monday so this gave us one business day 
to review the incomplete package. If I remember right, we had 2 hours 
and 40 minuets to discuss AFO-CAFO for dairy and beef farmers. They had 
just four dairy farmers to represent the dairy industry. They also gave 
us an additional hour later. I have met several panel members since and 
we all agree that we did not get enough time to discuss issues and that 
the EPA instructions to us were confusing.
    I'd like to share some of my comments with this committee. . . .
    In conclusion, I feel that the EPA is over responding with their 
TMDL and AFO-CAFO regulation. Non-point pollution can and should be 
handled better at the State level. Currently there are economic forces 
at work driving the dairy industry in two directions (1) smaller part 
time farmers and (2) larger and larger farms. I feel that the cost to 
comply per cow will be greatest on the mid-size family farms if these 
changes come about. Farmers such as myself will either get bigger, get 
smaller, or go out of business. In the Northeast that means more 
farmland will be made available for development. Privately, most DES 
and EPA officials I have spoken to feel that farms are less of a 
problem than sprawl for the environment. Congress must also look at the 
NRCS EQIP program. The application procedure needs to be simplified and 
the funding level needs to be restored. EPA cost share money needs to 
be given to NRCS to distribute to farmers and landowners. NRCS had a 
perfect vehicle to get this money out to the right landowners. We need 
to empower State technical committees to develop funding procedures 
that make sense to the individual States. More research needs to be 
done to make sure that the proposed regulations will actually have the 
desired effect. I would encourage this committee to call a halt to the 
EPA trying to expand the Federal Government's roll in non-point 
pollution.
                                 ______
                                 
                                           Northwinds Farm,
                                    N. Stratford, NH, May 12, 2000.

    Dear Sirs: After participating in this panel discussion, I have 
come to the conclusion that EPA has done everything they can do to 
minimize any kind of comprehensive review of their proposed regulatory 
changes by this small business entity group. They have minimized 
available discussion time by conducting all meetings over a telephone 
conference call system. They have used most of the telephone time to 
lay out their position. There has been less than 3 hours of testimony 
time.
    EPA is currently phasing in regulations to help control run off 
from large farms. These regulations become active this year. EPA never 
explained why they feel that their current regulations are not 
sufficient. They also glossed over the fact that the majority of farms 
are already under some type of State AFO-CAFO nutrient management 
regulation. Many of these State plans meet or exceed EPA proposed 
standards. Most of these State regulations are too new to evaluate 
their effectiveness. Congress specifically left nonpoint pollution up 
to the States in the Clean Water Act. Nutrient run-off from farms is 
very different from industrial pollution. To maximize profits 
industries must get rid of their waste as cheaply as possible. Manure 
has great value to a farmer. Any run off will have to be replaced with 
commercial fertilizer. Therefore, voluntary conservation works. EPA 
should work with USDA NRCS and make money available for voluntary 
conservation. They could greatly improve the efficiency of their money 
if they would work with the NRCS State Technical committee in each 
State. Better decisions could be made with coordination of State and 
Federal moneys. This will help to target resources into watersheds that 
need it most. It will also allow for the agricultural industry, State 
and Federal agencies, and voluntary conservationist to work together.
    I spoke with my State NRCS office and asked Gerald Lang Technology 
Leader for a historical prospective of cost for building manure storage 
systems. He broke the cost down as follows:
     Earthen storage pit with liner (clay or polymer): $1.75 
per AU per day of storage;
     Cast in place concrete (circular): $2.65 per AU per day of 
storage;
     Cast in place (rectangular): $3.50 per AU per day;
     Pre-fab concrete (Rectangular) approx. $3.00 per AU per 
day.
    In most of New Hampshire, you should be building storage for 280 
days. So if you were to require a 300 animal unit to have storage then 
these farmers would have to spend from $147,000 to $294,000. These 
complete systems include all the ``stuff '' that I think EPA may have 
left out of their building cost estimates. EPA never shared the actual 
specs for the building estimates they did. A concrete lined hole does 
you little good if you have no way to get manure into it, keep animals 
out of it, deal with sand or other solids, control surface water 
drainage etc.
    Also EPA thinks most 300-plus animal unit farms have adequate 
storage. Some States have developed cost share programs for their 
farmers to build pits. If EPA only surveyed those States then their 
numbers may be off. I think that almost \2/3\ of the farms in my county 
from 300 AU to 1,000 AU will have to build or expand storage 
facilities. This number will probably increase under the current 
economic conditions that farmers are facing unless the President makes 
EQIP funding a priority. The smaller the farm the more likely they are 
to be short of storage. New Hampshire allows for field stacking, which 
if properly done can be environmentally sound, and helps the farmer to 
reduce the costs associated with manure spreading. Spring is my busy 
time of year. The opportunity cost of tractor time and labor time is 
very high. If I can haul and stack manure during the winter in or 
nearer my fields then I can afford to spread that manure over more 
land, thus helping to reduce run off. There are some very simple 
effective ways to reduce the risk of run off from field stacking. EPA 
needs to be very careful about over regulating field stacking because 
that will lead to poorer management of manure. Your regulations could 
change manure from an asset to a liability. EPA does not have field 
staff enough to enforce their will on every 300 animal unit farm in 
America. You will increase the environmental benefit of your 
regulations if they work with the economic forces involved with 
agriculture instead of against them.
    Under President Clinton actual funding for cost share programs to 
help farmers build manure management structures has been cut by almost 
\2/3\. Furthermore, the local county technical assistance by NRCS has 
been reduced because of Vice President Gore's USDA restructuring 
program. Not only has local staff been reduced, but also their job 
requirements have been increased. In my county alone almost 300 man-
hours were spent on unfunded EQIP proposals. The USDA requires exact 
estimates of the project cost before funding levels are determined. The 
other side of this is the farmer has now wasted his time and become 
less likely to reapply in future years. It is now almost a 2-year 
project for a county NRCS staff to get money onto the farm. If the 
government wants to reduce farm run off then they need to reduce red 
tape associated with their programs.
    During the discussion and reading the material, several things have 
been brought to light that I would like to address. I do not understand 
why EPA would want to lift the 20 5-year rain event exclusion. If this 
is lifted then every farm will have to have a permit. No one can say 
that he or she will never discharge during a greater then 25-year storm 
event. How do I predict a 500-year rain event? This change would add 
tremendous cost to construction and to compliance. EPA has also 
suggested a 100-foot buffer for spreading manure next to water bodies. 
They show no cost to the small farmer for this. Somewhere between 30-50 
percent of my tillage is within 100 feet of water bodies. This alone 
would bankrupt me. Furthermore, all the farms in my county would have 
the same problem, as would most of the farmers in the State. I asked 
why EPA has set a 10-meter buffer for sludge spreading and want a 100-
foot buffer for manure. I did not get a real answer, nor has anyone 
gotten back to me with the science behind this statement. I think it 
has more to do with the political power associated with each organic by 
product than science. The truth is that actual onsite conditions have 
more to do with width of the buffer zone, and it is impossible for a 
Washington, DC-based regulation to take into account what is a 
sufficient buffer. It takes an onsite evaluation.
    Nutrient management plans need to be written by the farm owner. I 
spoke with a certified crop consultant that is very familiar with my 
farm. He said that the actual cost of producing a plan for my farm 
would be about $5,000. It would also cost me $1,000 plus to maintain 
this plan. My farm would be over 300 AU if you count dairy cows at 1.4 
AU and heifers also. This is a very large expense when farm net incomes 
are dropping below the poverty line in many cases. If you allow the 
farmer to become certified to write his plan then he can save some of 
this money.
    I would like to thank EPA and SBA for this chance to input on some 
of the problems I see with the proposed regulations. I would be more 
then willing to answer any questions you might have. I do feel however 
that to get better information from a SBREFA Small Entity Committee we 
should be allowed more than 3 hours of time for us to ask questions of 
EPA and for them to answer these questions.
            Sincerely,
                                            Scott R. Mason.
                               __________
STATEMENT OF DAVID PARIS, WATER SUPPLY ADMINISTRATOR, MANCHESTER WATER 
           TREATMENT PLANT, AMERICAN WATER WORKS ASSOCIATION

                              INTRODUCTION

    Good morning Mr. Chairman. I am David Paris, Water Supply 
Administrator of the Manchester Water Treatment Plant, Manchester, New 
Hampshire. The Manchester Water Treatment Plant provides drinking water 
to 128,000 people in Manchester and the surrounding communities of 
Derry, Londonderry, Grassmere, Goffstown, Bedford and Auburn, NH. I 
serve on the American Water Works Association (AWWA) Water Utility 
Council and am here today on behalf of AWWA. AWWA appreciates the 
opportunity to present its view on the proposed rulemaking regarding 
Total Maximum Daily Loads.
    Founded in 1881, AWWA is the world's largest and oldest scientific 
and educational association representing drinking water supply 
professionals. The association's 56,000-plus members are comprised of 
administrators, utility operators, professional engineers, contractors, 
manufacturers, scientists, professors and health professionals. The 
association's membership includes over 4,000 utilities that provide 
over 80 percent of the nation's drinking water. AWWA and its members 
are dedicated to providing safe, reliable drinking water to the 
American people.
    AWWA utility members are regulated under the Safe Drinking Water 
Act (SDWA) and other statutes. AWWA believes few environmental 
activities are more important to the health of this country than 
assuring the protection of water supply sources, and the treatment, 
distribution and consumption of a safe and healthful adequate supply of 
drinking water. We strongly support effective clean water pollution 
prevention programs.
    AWWA supports the Total Maximum Daily Load (TMDL) concept with the 
inclusion of effective nonpoint source controls. AWWA has several 
concerns about implementation of the TMDL proposal as published in the 
Federal Register on August 23, 1999. AWWA's concern stems from our 
member's responsibility to protect the American public through the 
provision of safe and affordable drinking water. AWWA agrees with a 
number of stakeholders that the TMDL proposal as proposed in the August 
23, 1999, Federal Register is flawed, and AWWA does not currently 
endorse any specific TMDL rule proposal.
    AWWA is disappointed by recent indications from U.S. EPA that the 
final TMDL rule will not address critical components contained in the 
August 23, 1999, proposal. It now appears that U.S. EPA will be 
removing key provisions:
     Identification of drinking water supplies as high priority 
watersheds for TMDL development, and
     Management of nonpoint pollution within the TMDL process.

          DRINKING WATER SUPPLIES AS HIGH PRIORITY WATERSHEDS

    Much of the current TMDL debate focuses on the Clean Water Act 
efforts to control point sources of pollutants so that receiving waters 
are ``fishable and swimmable.'' While important goals, the Clean Water 
Act is also a critical component of protecting drinking water supplies. 
Public water systems serve 271.3 million Americans. More than 161.7 
million American drinking water consumers rely on drinking water drawn 
from surface water supplies. Few of these drinking water systems have 
access to protected, pristine supplies and as a consequence must invest 
in treatment to remove contaminants introduced by point and nonpoint 
sources of pollution.
    Taking reasonable measures to identify and manage pollutant loading 
on a watershed basis is important to ensuring that drinking water can 
be provided with reasonable treatment, and therefore, at a reasonable 
price. Local consumer expectations and regulatory pressures have set 
high expectations for the safety of America's drinking water. The job 
of ensuring that safe, affordable water can be provided to the nation's 
citizens begins with reducing the pollutants entering the water 
treatment plant's source of supply. Protecting the 161.7 million 
Americans whose drinking water is drawn from surface water supplies is 
clearly one of the highest and best uses to which Clean Water Act 
resources should be applied.

                       NONPOINT SOURCE POLLUTION
    AWWA believes it is critically important that all levels of 
government address nonpoint source pollution seriously and 
aggressively.
    Numerous studies have shown that nonpoint sources of pollution are 
the largest and most significant sources of water pollution in most of 
the nation's impaired rivers and lakes. If the TMDL process does not 
address nonpoint pollution, it will simply be a paper tiger of little 
value in improving water quality.
    As a matter of law, nonpoint pollution is clearly within the U.S. 
EPA's purview under the Clean Water Act. Citing the comprehensive 
approach envisioned under the Clean Water Act, a Federal district judge 
ruled March 30 that plans to clean up impaired waters can apply to a 
river polluted solely by nonpoint sources, in this case sediment runoff 
(Pronsolino v. EPA, N.D. Cal., No. C99-1828, 3/30/00). ``TMDLs had to 
be set at levels that would `implement' the applicable water quality 
standards,'' U.S. District Court Judge William Alsup wrote. ``It would 
have been impossible to do so without taking any nonpoint sources into 
account as well as any point sources.'' The court suggested that the 
TMDL process could be used to ``help States evaluate and develop land-
management practices to mitigate nonpoint-source pollution.''

                    REALITIES OF IMPLEMENTING TMDLS

    Implementation of the Clean Water Act is a delegated 
responsibility. That is, individual States take responsibility for 
developing and implementing programs that achieve the Clean Water Act's 
goals. The States have overwhelmingly stated that they do not have the 
resources to implement the August 1999, TMDL proposal. AWWA's members 
understand that Federal requirements in the proposed TMDL rule would 
challenge States financially and technically. The Water Pollution 
Program Enhancement Act of 2000 (S. 2417), introduced by Senators Crapo 
and Smith, recognizes that challenge and authorizes needed financial 
resources for several programs related to implementation of TMDLs. AWWA 
supports additional funds for administration, monitoring, Section 319 
grants, and remediation of nonpoint sources of waterbody impairment. 
Once authorized it will be critical to ensure that the authorized funds 
are appropriated in each fiscal year; this second hurdle in the budget 
process has historically been a challenge for the programs affected by 
S. 2417.
    S. 2417 also recommends the initiation of a National Academy of 
Sciences (NAS) study on key TMDL technical implementation issues. AWWA 
believes strongly that Federal policies and regulations should be based 
on sound science and supports involving independent scientific input on 
technical issues surrounding TMDL implementation. We would caution that 
the NAS study process and regulatory processes can be quite slow. AWWA 
strongly urges that S. 2417 be amended to provide strong assurance that 
the NAS study will be completed and that the rulemaking can proceed in 
a reasonable period of time. We believe it critical that a final TMDL 
regulation which includes an effective nonpoint source pollution 
component based on the current proposal, comments received during the 
formal comment period, and the NAS report be completed as soon as 
possible.
    Under no circumstances should the NAS study process delay 
promulgation of the final rule beyond 24 months from enactment into 
law. Drinking water utilities across America are facing pathogen, 
nitrate, and other pollutant loadings that could be addressed through 
nonpoint source controls. Timely action to incorporate nonpoint source 
management within the nation's TMDL process is critical to protecting 
the nation's health from acute and chronic contaminants being 
introduced to the nation's surface and groundwater drinking water 
supplies by nonpoint source pollution.
    This concludes the AWWA statement on the proposed rulemaking 
regarding Total Maximum Daily Loads. I would be pleased to answer any 
questions or provide additional material for the committee.
                               __________

     Responses to the May 1, 2000 Joint Statement of Department of 
  Agriculture and Environmental Protection Agency on Revisions to the 
               August 1999 TMDL and NPDES Proposed Rules
    The following is a set of questions and answers that respond to the 
joint USDA/EPA statement outlining revisions to the August 22, 1999 
total maximum daily load (TMDL) and national pollutant discharge 
elimination system (NPDES) permit regulations. The questions are based 
on the USDA/EPA policy statements contained in the document.
    Question 1. Is the USDA/EPA policy consistent with almost 30 years 
of Clean Water Act statutory interpretation, Federal regulation and 
court decisions that forest management activities are a ``nonpoint'' 
source category subject to State regulation under Section 208 and 319 
of the Act?
    Response. No. Nowhere in the policy statement does EPA/USDA even 
mention that they int to do exactly what EPA originally proposed in 
August 1999. The EPA will remove the designation of such forestry 
activities as nursery operations, site preparation, reforestation, 
thinning, cultural treatment, prescribed burning, pest and fire 
control, harvesting, surface drainage and road construction and 
maintenance as a nonpoint source category. Instead, it will redesignate 
them as potential point source discharges of pollution on a case by 
case basis, thereby ultimately subjecting the activities to Federal 
Clean Water Act discharge permits.
    Under the Clean Water Act, forest management operations have never 
been considered discharges subject to point source permits. Forestry 
operations have always been considered to have diffuse nonpoint source 
runoff. Congress in 1972 and, EPA in 1976, determined that there are no 
discharges from forestry operations that require a permit. In fact, EPA 
reaffirmed Congressional intent that forestry operations be designated 
as a nonpoint source category.

    Question 2. By granting a 5-year waiver from Federal NPDES permit 
requirements for forestry activities, does this provide for a more 
``flexible'' State TMDL program?
    Response. No. States now have the authority to regulate forestry 
operations as nonpoint sources. The suggested revision keeps this 
authority in place for 5 years. The only increase in flexibility occurs 
from the absence of any Federal permit requirements during this period. 
At the end of the 5-year period, flexibility will definitely decrease 
as EPA will presumably insert Federal requirements into what has 
heretofore been an area of State jurisdiction.
    The removal of the nonpoint source designation exposes forestry 
activities to litigation over their status. Recognizing the authority 
to require NPDES permits, but not exercising that authority, has been 
ruled improper in the past by the Federal courts. The 5-year moratorium 
would very likely be subjected to a similar challenge.
    If there is a 5-year moratorium, why delete the designation of 
forestry as a nonpoint source category immediately? If permits will not 
be imposed for 5 years, why remove the designation and subject forest 
landowners to citizen suits. The new permitting requirements will 
jeopardize hundreds of billions of dollars in forest land ownership and 
investment. This revised approach provides no measurable improvements 
to water quality today and this uncertainty will place 9 million forest 
landowners around the country at legal risk. It will likely lead to the 
conversion of forest land to suburban sprawl and development.

    Question 3. EPA proposes to work with USDA and the public to 
develop guidance for States to follow in designing and adopting 
forestry BMP programs for the protection of water quality. What 
implications will this likely have?
    Response. Under the Section 319 of the Clean Water Act, EPA reviews 
State nonpoint source program for approval including State forestry 
programs. The forestry community continues to work with States and EPA 
to address State programs through a collaborative effort at the State 
level.
    This revised approach is more expansive than the proposed rule. 
EPA/USDA now claim authority to review and approve entire State 
forestry programs as opposed to reviewing each individual TMDL 
submitted by the State. There is no statutory basis or case law to 
allow the EPA to say that a forestry activity is or is not a point 
source discharge subject to Federal permits based on the proven 
effectiveness of a State forest management program.
    Through a public process to develop national forestry practices 
guidance, EPA/USDA now intend to federally dictate the development, 
implementation and enforcement of virtually every forest management 
activity conducted on all private forest lands in the country. In other 
words, if State forestry programs such as tree planting, harvesting, 
prescribed burning, pest and fire control, surface drainage, road 
construction and maintenance, thinning, cultural treatment, site 
preparation and nursery operations are inconsistent with Federal 
standards, EPA will impose Federal NPDES permits.
    Through this Federal oversight, EPA/USDA have for the first time 
provided environmental non-governmental organizations the ability to 
dictate how forest management operations should be conducted on private 
forest lands throughout the country. This could include the species of 
tree to plant, what type of forest management operation is conducted, 
the width of a streamside management zone or if harvesting should even 
be allowed.

    Question 4. EPA claims that forest operators in States with 
approved programs will know what is expected of them, what BMPs are 
effective in reducing pollution and need to be implemented. The Agency 
indicates the willingness to provide ``credit'' for voluntary programs. 
What is the forestry community response.
    Response. EPA does not specify what precise forest management 
criteria will qualify a State for having ``reasonable assurances'' that 
a TMDL will be implemented. EPA wants the discretion to approve State 
forestry programs based on undefined criteria. This is a blank check. 
In fact, the revised approach is likely to trigger Endangered Species 
Act consultation by requiring the EPA to consult with the U.S. Fish & 
Wildlife Service and the National Marine Fisheries Service when 
developing the national program criteria, determining program 
effectiveness and final approval of each State program.
    The joint policy statement indicates that voluntary and incentive-
based approaches ``will be given due credit.'' This statement is 
absolutely meaningless. Either the program is acceptable or 
unacceptable. According to the August 1999 proposal, only 10 
unidentified States were considered to have acceptable programs. EPA 
does not provide any indication as to how this was derived.

    Question 5. EPA states that existing Federal law requires forest 
operations on National Forest System lands to be conducted consistent 
with water quality requirements. Therefore, EPA/USDA provide an 
outright exemption from permitting requirements for U.S. Forest Service 
lands How does the forest community respond?
    Response. This is a political decision with absolutely no 
technical, legal, statutory or regulatory basis. This decision gets at 
the very heart of the entire misguided approach to the NPDES portion of 
the August 22, 1999 regulation. Under this ``revised'' approach, EPA 
now asserts its ability to distinguish what constitutes a point source 
discharge subject to Federal NPDES permits based on whether it is 
occurring on public or private lands.
    This is in addition to the fundamentally flawed premise contained 
in the proposed rule that EPA asserts discretionary authority to 
regulate forestry activities as a point source in impaired waterbodies 
but not in unimpaired waterbodies. This interpretation of their 
statutory authority is dubious at best and ripe for court policymaking 
rather than congressional policymaking.
    Under this theory, if the National Forest Systems are exempt, why 
not the National Park Service, the U.S. Fish & Wildlife Service, the 
Bureau of Land Management, Department of Defense, or every State/county 
forest or park or any private landowner that conducts forestry 
operations consistent with water quality ``requirements.'' State 
forestry best management practices programs are also designed to be 
consistent with achieving ``requirements.'' There should be equal 
treatment and recognition for all landownership under the Clean Water 
Act. EPA must withdraw the NPDES regulations of the proposed August 
1999 rulemaking.

    Question 6. EPA claims that point source discharges to waters of 
the United States are not required to get a permit and will not be 
subject to citizen suit or government enforcement action under the 
Clean Water Act. How would the forestry community respond to that 
statement?
    Response. Once EPA removes the regulation recognizing most forestry 
activities as nonpoint sources, forest landowners will be open to 
citizens suits alleging they must obtain a permit. When such a claim 
was filed against forestry activities on national forest lands, the 
court rejected the claim based on EPA's 23-year old recognition of 
forestry as a nonpoint source. Newton County Wildlife Assn. V. Rogers, 
141 F.3d 803 (8th Cir. 1998). Moreover, EPA has already lost on the 
issue of failing to identify which forestry activities have discharges 
making them point sources. Natural Resources Defense Council v. Costle, 
S68 F.2d 1369 (D.C. Cir. 1977). EPA then adopted the current 
regulations that designate most forestry activities as nonpoint 
sources. Removal of this regulation will likely result in new citizen 
suits over this issue.

    Question 7. EPA states in their April 5 letter that ``Clean Water 
Act permits will not be required from diffuse runoff from forestry 
operations under any circumstances.''
    Response. EPA has yet to confirm under the April 5 or May 1 
approaches that NPDES permits will not be required under any 
circumstances for the following forestry activities: Nursery 
operations; Reforestation; Thinning; Pest and fire control; Site 
preparation; Cultural treatment; Prescribed burning; Harvesting 
operations; Road Construction and Maintenance; and Surface drainage.

    Question 8. What are the costs and benefits of the redesignation of 
forest activities as a point source discharge?
    Response. EPA has not provided any estimates of the specific 
benefits that can be obtained from the proposed NPDES forestry 
requirements. In addition, EPA's estimate of the incremental cost of 
the proposed rule totals less than $13.2 million. Other independent 
analyses conducted by university economists estimate the impact on the 
forestry community and State agencies at well over $100 million a year. 
In light of this rather large discrepancy in cost estimates and because 
the impact on forestry alone could exceed $100 million annually, we 
believe EPA has a responsibility to comply with the Unfunded Mandates 
Reform Act, the Regulatory Flexibility Act and Executive Order 12866 
and conduct a thorough benefit and cost analysis before these rules are 
finalized.
                               __________

     STATEMENT OF SI BALCH, CHIEF FORESTER, MEAD PAPER, WILTON, ME

    If TMDLs are not based on science they will be indefensible. Your 
tax dollars and mine will have been wasted on a worthless product, and 
will be further wasted defending them in court.
    S-2417--``The water pollution program enhancement act''--is needed 
to fix some of the problems with the EPA proposal.
    I'd like to make the following points.
    1. Non Point Sources should not be included in TMDL process. There 
is no established method for allocate a portion of the pollution load 
to a Non-Point Source. If the TMDL process proceeds and a pollutant is 
attributable to silvicultural activities then that activity would get 
an allocated amount. which would then have to be monitored to assess 
compliance. No method exists for this process.
    2. Retain the definition of most silvicultural activities as non-
point in nature. Honor congressional portent. The 1977 and 1987 Clean 
Water Act amendments (reference 64 Fed Reg. 46,077) confirm Congress's 
intent to continue its fundamental policy to not regulate water 
pollution from most silvicultural activities through permit programs.
    3. Provide the States sufficient time and resources to develop 
quality TMDL's.
    4. List only waterbodies that are now ``impaired''. Do list list 
ones that are not currently ``Impaired'' but are threatened'' I believe 
this requirement does beyond EPA's legal authority and should not be 
included in the final rules.
    5. Each State should have a clear listing methodology based on 
science.
    6. Use a 5-year listing cycle, which allows segments to be de-
listed once they have attained standards.
    7. The TMDL development schedule should be able to be re-negotiated 
at each listing cycle to address new changing circumstances. The rules 
should allow the schedule to be revised each time the State lists its 
waters.
    8. The EPA should not take the power to approve a State's listing 
process and criteria. EPA says they will not be involved in approving 
the State developed listing process. however the experience in Idaho 
shows that they will get involved in deciding what criteria the State 
can use. EPA has disallowed the Idaho criteria.
    9. The EPA should not take the power to approve State 
implementation plans. EPA says it will not approve TMDL implementation 
plans. it will only require that they be developed. I have grave doubts 
about this. When Maine was dealing with the CZARA process, the State 
agencies proposed leaving silviculture off the list of pollution 
sources within the coastal zone. EPA refused to allow that.
    10. The EPA should not take the authority to take over a State TMDL 
development process. EPA says it will have the authority to completely 
take over the TMDL development process, if it feels a State is not 
doing it properly.
    I think the USDA comments earlier in the year were particularly 
well done. I would like to support both their efforts and those of the 
American Tree Farm system and AF&PA.
                               __________

    STATEMENT OF JOHN M. HODSDON, DIRECTOR, NATIONAL ASSOCIATION OF 
                         CONSERVATION DISTRICTS

    I would like to thank Senator Smith and the committee for this 
opportunity to emphasize our commitment to clean water and also to 
express some concerns with the proposed TMDL regulations. It is nice to 
have you back in New Hampshire.
    I am representing the National Association of Conservation 
Districts (NACD), of which I am a director. I am mainly a vegetable and 
Christmas tree farmer from Meredith in the Lakes Region and I am also 
chair of the water quality committee of the New Hampshire Association 
of Conservation Districts.
    There are nearly 3,000 local Conservation Districts nationwide run 
by volunteer boards and usually paid staff including 10 in New 
Hampshire organized along county boundaries. We work with landowners on 
a volunteer basis protecting and enhancing soil quality and water 
quality as well as working with Planning Boards to minimize the 
environmental impact of development Our partners, the Natural Resources 
Conservation Service (NRCS), are essential for providing technical 
advice and conservation planning. Because of a gradual loss of about 
half of their personnel over the last 20 years they are no longer able 
to do all that is needed. Conservation Districts working with NRCS, the 
Extension Service, and our other local partners are able to direct 
resources where they are needed most.
    A voluntary incentive-based approach has been very effective in 
reducing erosion, sediment, and polluted runoff. Farmers are more than 
willing to do still more. However, they have limited capital. Last year 
requests for Environmental Quality Incentive Program (EQIP) cost share 
funding in New Hampshire was about five times what was available. 
Remaining problems like streambank erosion and manure storage to modern 
standards will require more funds than farms can generate.
    The proposed regulations appear to be a very prescriptive, one-
size-fits-all approach. This is an inefficient, expensive, and less 
effective method to reduce nonpoint source pollution. Since Congress 
never intended for EPA to use TMDLs to regulate nonpoint source 
pollution and it will not work as well as the voluntary incentive-based 
approach; it follows that EPA should not do it nor direct States to do 
it.
    We have some specific concerns with the proposed regulations. It is 
not clear how the margin of safety will work. I fear that EPA will 
require stricter controls when the level of ignorance is higher. The 
use of a margin of safety is appropriate when something new is being 
introduced into the environment with possible unforeseen effects. It is 
not appropriate for setting effluent limitations.
    We are also concerned with how the regulations would affect 
watersheds classed as pristine. Best Management Practices (BMPs) should 
be required in those watersheds, but there is no assurance that BMPs 
would be allowed and regarded as adequate.
    In summary, more resources are needed to get the job done. It takes 
people in the field to assist private land managers with sound, 
technology-based conservation. Cost-share assistance is required to 
implement some of the more expensive BMPs. NACD has done a workload 
analysis that documents a need of $900 million for NRCS for 
Conservation Technical Assistance. NACD is requesting $325 million for 
EQIP, $50 million for the Wildlife Habitat Incentive Program (WHIP), 
$25 million for the Forestry Incentive Program, $53 million to fully 
fund Resource Conservation and Development (RC&D) councils, $300 
million for NPS Control (319) grants, and $25 million for the 
Stewardship Incentives Program (SIP). We would also like to see funding 
resumed for Section 208(j) of the Clean Water Act to get more funding 
at the local level.
                               __________

             STATEMENT OF DAVID BONNEY, FORESTER, NEWRY, ME

    Hello, I am David Bonney. I am a Maine licensed forester residing 
in Newry, Maine. I have practiced forestry for 21 years in the States 
of Maine, New Hampshire, and New York. I am currently employed by 
Wagner Forest Management, which is headquartered in Lyme, New 
Hampshire.
    Wagner manages large acreages in New England, New York, and parts 
of Canada. As a practicing forester I strongly object to the EPA's 
proposed efforts to redefine forest management activities as a point 
source polluter. If this action is allowed, the ability of landowners 
to responsibly manage their land will be adversely impacted. This 
ability to manage forestlands is crucial to the economy supported by 
the management of our forests.
    Landowners currently follow State and Local laws along with 
implementing Best Management Practices when conducting forest 
management activities. To require that landowners practicing forestry 
go through the delay and expense of receiving Federal permits, given 
the effective programs already in place is completely unacceptable. 
These proposed permit requirements threaten the forest landowner's 
already narrow profit margin. These requirements would also open the 
door for other laws and civil lawsuits. Landowners faced with not 
having the opportunity to profitably manage their holdings may choose 
to sell to developers. This permanent loss of forestland would impact 
the environment to an extent that no forestry activity would ever 
induce.
    I urge that the determination of forest activities as a non-point 
source polluter not be reversed.
                               __________

 STATEMENT OF JIM LEHNER, GENERAL MANAGER, NORTHEAST REGION PLUM CREEK 
                               TIMBER CO.

    My name is Jim Lehner and I am the General Manager for Plum Creek 
Timber Co. in our Northeast Region.
    On behalf of Plum Creek, I am here to express strong opposition to 
the Environmental Protection Agency's proposed revision to the Water 
Quality Planning and Management Regulations.
    First, we believe the proposal exceeds EPA's legal authority. EPA's 
attempt to bring nonpoint sources under the Total Maximum Daily Load 
program directly contradicts the Clean Water Act, as it does nothing to 
improve water quality. Congress never intended for forestry to be 
regulated as a point source, and policy changes such as this proposal 
should be made only by Congress.
    Second, we believe the proposal will result in a tremendous 
increase in bureaucracy and red tape without a commensurate increase in 
water quality. Significant resources would be drained from not only 
large landowners like Plum Creek, but thousands of small landowners 
growing and harvesting trees on their property--jeopardizing the health 
and vitality of the timber industry.
    Lastly, Plum Creek and the entire forest products industry have 
made tremendous strides in the improvement of water quality through the 
use of Best Management Practices or BMPs for forestry. These BMPs have 
proven to be highly effective in controlling pollution from forestry 
activities.
    The current EPA proposal is unwarranted and should be withdrawn.
                               __________

         STATEMENT OF JON OLSON, MAINE FARM BUREAU ASSOCIATION

    Senator Smith and members of the Senate Committee on Environment 
and Public Works, my name is Jon Olson. I am the Executive Secretary of 
the Maine Farm Bureau, the State's largest general farm organization of 
5,000 members.
    Maine Farm Bureau is opposed to the EPA's proposed Total Maximum 
Daily Load (TMDL) rule under the Clean Water Act (CWA). Confined/
Concentrated Animal Feeding Operations (CAFO's) and Animal Feeding 
Operations (AFO's) will also be impacted by these rulings. We feel the 
proposed rules would affect farmers and foresters by forcing costly 
compliance. The rules as currently written will be costly for States to 
implement for the vast majority of States do not have sufficient data 
to develop accurate TMDLs for their waters, and the regulatory 
authority for nonpoint source pollution will shift from the States to 
the Federal Government.
    Specifically, Maine Farm Bureau has the following concerns with the 
proposed TMDL rule.
    1. The rule expands EPA's regulatory reach and intervention in 
water quality decisions authorized to the States by the CWA. Exceeding 
EPA authority to regulate nonpoint source pollution would alter the 
Federal-State relationship.
    2. The rule will create substantial costs on the private sector and 
States in implementing it. EPA should be required to conduct a cost-
benefit analysis describing the impact of the proposed rule.
    3. The rule exceeds EPA's authority to require States to list and 
develop TMDLs for nonpoint source-impaired waters. Congress established 
Section 319 in the CWA to address impairment from nonpoint sources, and 
specifically decided not to include nonpoint sources in the TMDL 
program.
    4. The rule exceeds EPA's authority to regulate ``threatened`` 
waters. By definition, ``threatened`` waters currently meet all 
applicable water quality standards. Congress expressively authorized 
EPA to require States to list and prepare TMDLs only for impaired 
waters.
    5. The rule includes the listing of waters impaired by air 
deposition. The CWA does not authorize this listing.
    6. The rule lacks an effective delisting process for waters 
improperly listed or when water quality standards have been achieved.
    7. The rule incorrectly bases listing on evaluated (anecdotal) data 
and narrative criteria rather than monitored and numerical data.
    8. The rule includes requirements for ``unknown`` causes of 
impairment. Listing is a regulatory trigger, and ``unknown causes`` is 
not a threshold justifying this step. Chemical, physical, and 
biological evidence of an actual pollutant should be sufficient for 
causes of impairment.
    9. The rule defines all pesticide detection as ``chemical wastes,`` 
even those that have FIFRA labels authorizing water treatment.
    10. The rule defines silviculture activities as point sources. 
Congress clearly intended that silvicultural activities are nonpoint 
sources not appropriate for regulation through Federal permit 
requirements.
    Rather than have these rules go forward, we urge the passage of S. 
2417, the Water Pollution Program Enhancement Act of 2000 introduced by 
Senator Mike Crapo and cosponsored by you, Senator Smith. This bill 
will properly delay the EPA's proposed TMDL rule until the results of a 
National Academy of Sciences study of the technical aspects of the TMDL 
calculations, costs, and availability of alternative programs or 
mechanisms to reduce water quality impairments from point and nonpoint 
sources are known.
    A key provision of the S. 2417 addresses the lack of adequate 
resources for States and individual landowners to implement effective 
nonpoint source programs. Current voluntary, incentive-based 
stewardship programs cover millions of acres of farmland and 
forestland, and are producing significant improvements in reducing 
nonsource pollution. Reaching clean water goals for nonpoint sources 
will require more funding for a water management program based on sound 
science, good data, and a strong Federal, State and local partnership.
    Thank you for your attention to the above.
                               __________

   WHAT IS NEW HAMPSHIRE SAYING ABOUT EPA'S PROPOSED TMDL RULE CHANGE

    ``Additional Federal regulation of [forestry] activities would only 
add an unnecessary regulatory burden to the forestry industry without 
any clear environmental benefit.''--Harry Stewart, Director of the NH 
Department of Environmental Service's Water Division in a January 20, 
2000 letter to the EPA Comment Clerk
    ``The proposed rule is misguided. It creates an ominous and 
uncertain Federal regulation over silviculture and forest management . 
. . The regulation of these activities on private lands belongs with 
the States, not the Federal Government.''--Phillip Bryce, Director of 
the NH Department of Resources and Economic Development's Division of 
Forest and Lands in a January 20, 2000 letter to the EPA Comment Clerk.
    ``We believe that the proposed rule changes are onerous in scope 
and could force land out of productive forestry and into development. 
Forcing landowners to choose between healthy forests and selling for 
development is not good for New Hampshire's environment, or for the 
nation's.''--Susan Slack, Policy Specialist for the Society for the 
Protection of NH Forests in a January 19, 2000 letter to the EPA 
Comment Clerk.
    ``Regrettably we have a few people in our town and surrounding 
communities who do not believe a tree should ever be cut . . . These 
individuals will welcome your proposed rule, especially the opportunity 
to bring legal action against landowners for perceived violations. It 
would only take a couple of well-publicized cases not only to curtail 
logging on private lands, but also to end good and active stewardship 
on such lands. More private land now open to the public will likely be 
posted against trespassing.''--Whitefield Tree Farmers, in a January 
17, 2000 letter to the EPA Comment Clerk.
    ``Tree Farmers are good citizens and help provide the public with 
clean air, water, habitat for wildlife, recreation, and healthy forests 
for the future. Please do not make us land developers.''--Hollis Tree 
Farmer in a January 17, 2000 letter to the EPA Comment Clerk
    ``I do not want to sell my land for development purposes but if I 
am regulated out of this retirement hobby (forestry) I may be forced to 
sell.''--Pittsburg Tree Farmer in a January 14, 2000 letter to the EPA 
Comment Clerk.
    ``If you propose to add more bureaucracy and threats of liability 
to our property it would indeed make more sense to turn it over to a 
developer.''--East Wakefield Tree Farmer in a January 12, 2000 letter 
to the EPA Comment Clerk
    ``Government should encourage forest stewardship rather than add 
unnecessary costs to it.''--Auburn Tree Farmer in a January 17, 2000 
letter to the EPA Comment Clerk
                                 ______
                                 

         WHY IS THE EPA'S PROPOSED RULE CHANGE A THREAT TO NEW 
                          HAMPSHIRE'S FORESTS

    New Hampshire has a long history of responsible forest management 
that gives proper consideration to the impact of forest management 
practices on all aspects of the environment--including water quality. 
Now comes word from Washington, DC that we need their help in 
accomplishing what has been the norm in New Hampshire's forests for 
years. This Washington-knows-best approach threatens to undo years of 
cooperation between forest industry, private landowners, 
environmentalists, and State government. Moreover, if put into place 
these rules may very well cause the exact opposite result that those in 
Washington say they are striving for.
    If these rules go into effect, New Hampshire landowners, loggers 
and foresters may face increased regulation and bureaucracy, including:
     In impaired watersheds, landowners could be required to 
get Federal permits in order to conduct just about any forest 
management activity. You may not be able to harvest, build roads, or 
prepare sites without first getting a Federal permit;
     Under this system, landowners could be subject to nuisance 
suits for permitted activities, and face potential fines; and
     If you apply for a permit, activities on your land might 
have to stop while your actions are analyzed for their impact on 
endangered species--the same kind of analysis that has delayed new 
timber sales on the White Mountain National Forest for over a year.
    By increasing the cost and risks associated with good forest 
stewardship the EPA is creating an incentive for landowners, who 
otherwise would protect their land from development, to sell it.
    The benefits landowners, loggers and foresters provide the public 
are well known: clean air, clean water, good habitat for wildlife, 
forest products, recreation for our neighbors and healthy forests for 
everyone. NHTOA is concerned that these cumbersome new rules proposed 
by EPA could force land out of productive forestry and into 
development.
    Many other members of New Hampshire's conservation community have 
expressed their opposition to these proposed rules. The NH Department 
of Environmental Services, the Society for the Protection of NH 
Forests, the State Division of Forests and Lands, the entire 
congressional delegation and hundreds of loggers and landowners all 
have said that further Federal regulation of forestry is not necessary.
                               __________

              ALTERNATE COMMENTS FOR TMDL HEARING AT WMRHS

    Now that we have heard what can happen under these rules, I would 
like to relate a case where it did happen in similar circumstances.
    It involved Ben Lacy, a small apple juice producer in western 
Virginia. He had a NPDES permit, similar to what is being proposed 
here, to discharge wash water from his operation into a local stream. 
He thus had to do quarterly testing of his effluent and file Quarterly 
Monitoring Reports with the State. One day, at a time his business was 
beset with disasters, staffers from the Virginia Department of 
Environmental Quality showed up for a routine audit of his reports. 
Because of his troubles, he told them to come back another time. 
Instead they returned with a platoon of FBI and police and seized all 
his records. They found that over several years he had reported a few 
incorrect numbers, mostly in error. The Virginia Attorney General 
wouldn't prosecute, nor would the area Federal grand jury indict, but 
the intrepid feds shopped around until they found one that would. As a 
result, he was taken to Federal court, convicted on 8 counts of 
``making false statements,'' and was facing 24 years in jail and 2 
million dollars in fines. That is, until the judge in the case 
discovered that your government and mine had suborned testimony from 
the chief witness against him, a disgruntled former employee, and threw 
the case out. And at no time in any of this was there any question of 
illegal pollution or exceeding TMDL's. In fact, a local 
environmentalist group tried to testify on his behalf.
    So all you loggers, farmers, and anyone else engaged in resource-
based activities out there, make sure you have enough lawyers, 
accountants, consulting engineers, and EPA-certified testing labs at 
your disposal to deal with this latest disgorge of mindless regulatory 
bulimia, or you too, could be facing 24 years in jail and 2 million 
dollars in fines for trivial paperwork violations, also possibly based 
on suborned testimony by your own government.
                               __________

 STATEMENT OF COMMISSIONER STEPHEN TAYLOR, NEW HAMPSHIRE DEPARTMENT OF 
                     AGRICULTURE, MARKETS AND FOOD

    The New Hampshire Department of Agriculture, Markets and Food 
supports additional study of proposed Environmental Protection Agency 
rules relative to Total Maximum Daily Load (TMDL) methodology for water 
quality protection. The draft rules fail to take into account the 
enormous amount of work and investment made by New Hampshire livestock 
and dairy producers working in concert with the USDA Natural Resources 
Conservation Service on abatement and prevention of point and nonpoint 
sources of pollution. Final rules must recognize the distinct 
differences in soils, hydrology, production practices and other salient 
factors between States and even between watersheds.
                               __________

      STATEMENT OF SARA PACKER, FORESTER, WAGNER FOREST MANAGEMENT

    Hello, my name is Sara Packer, I'm a forester out of Northern 
Vermont with Wagner Forest Management, I'm an active member of the 
Society of American Foresters and serve on boards of the VT Sustainable 
Forestry Initiative and the VT Woodlands Association. I share with many 
others in this room, a strong commitment to the responsible management 
and protection of our natural resources and I do not believe expanded 
Federal regulation is necessary to meet the goal of achieving fishable 
and swimmable waters. Silvicultural activities have been exempt from a 
Federal permitting process since the original Clean Water Act and 
multiple State laws and programs along with various voluntary 
initiatives and educational programs have proven successful in 
addressing the protection of water quality on forest management 
operations.
    Our ability to own and responsibly manage forestland is critical to 
the environmental and economic health of this region. Requiring 
landowners to go through the delay and expense of receiving a Federal 
discharge permit will undoubtedly threaten their ability to efficiently 
and profitably manage forestland and many landowners who have helped to 
maintain and protect our open space and working landscape, may choose 
to sell their land to developers. It is clear, that the permanent loss 
of this forestland poses a far greater environmental threat than any 
forest management activity ever could.
    Thank You.

7      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                              ----------                              

                         THURSDAY, MAY 18, 2000

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Wildlife, and Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:04 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.

       S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000

    Present: Senators Crapo, Boxer, Thomas, Wyden, Baucus [ex 
officio] and Smith [ex officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Good morning and welcome. This is a hearing of the 
Environment and Public Works Committee, Subcommittee on 
Fisheries, Wildlife, and Water. Today, we will be hearing 
testimony on 
S. 2417, the Water Pollution Program Enhancements Act of 2000.
    Senator Smith, the chairman of the committee and I 
introduced S. 2417 last month in response to both concerns with 
the current existing TMDL program and the proposal by the EPA 
to promulgate rules regarding the total maximum daily load and 
National Pollutant Discharge Elimination System, the NPDES 
programs under the Clean Water Act.
    Since that draft rule was published last August, this is 
the eighth congressional hearing that has been conducted on the 
TMDL issue, and it is an exceedingly large and complex rule 
that impacts, if it were implemented, virtually every region of 
the country.
    We have heard from Members of Congress who are stating that 
their constituencies are contacting them from the east to the 
west, and from the north to the south, and from across industry 
lines, from municipalities, local government entities and State 
governments, as well, with significant concerns about the rule, 
which is why this major attention has been brought to it.
    In the previous hearings, we have found that the reasons 
for concern about the rule are broad and far reaching; not the 
least of which is the strong concern about the costs that would 
be imposed and the fact that we still do not have a clear cost 
analysis that shows what the true costs are going to be.
    There is serious concern about the lack of available and 
reliable data to manage the program that is being proposed. The 
concern that the rule, if implemented, would actually pull 
States away from programs that they are now undertaking, that 
are having some success, and hopefully will be able to be 
supported and strengthened in increasing their successes, but 
would deter the States from continuing on programs that they 
believe are going to be more effective than if they were 
diverted into this new rule proposal.
    There are many other concerns that have been raised. But as 
a result of those concerns and the many others that we have 
heard, it became evident to us that something needed to be 
done.
    In our discussions with the EPA, it became evident that the 
EPA continues to stick to its time line of trying to implement 
and finalize the rule by June 30. And as a result, we felt it 
would be necessary for Congress to act expediently.
    S. 2417 would provide nearly a half-a-billion-dollar 
increase in funding for sections 106 and 319 activities, under 
the Clean Water Act, such as acquiring reliable data through 
site specific monitoring and implementing watershed management 
strategies aimed at improving water quality.
    It would direct the EPA to contract with the National 
Academy of Sciences to obtain better science with respect to 
the TMDL program, and an in-depth analysis of the true cost of 
implementing the TMDL program.
    It would create a watershed management pilot program in 
order to evaluate State programs that have been successful in 
improving water quality through incentives and innovative 
technologies.
    And finally, the bill would provide an 18-month timeout, 
while the National Academy of Sciences is conducting its study, 
before the EPA could finalize its rules.
    I think it is important to note that since the rules were 
published, the EPA has proposed some modifications to the 
regulations in response to the public comments that it has 
received and the congressional oversight.
    At this point, I think that we are going to want to focus 
very carefully on these proposals, to see whether they justify 
any change in course. But the bottom line is that we need to 
find out exactly what it is that is being proposed and deal 
with it in a situation in which we are not under the kinds of 
time pressures that we currently face.
    Finally, I would like to make a few remarks about the 
witnesses. I appreciate the time that you have all taken at 
this busy time of year to be here with us today. I would also 
like to note that not all of the witnesses to which the 
subcommittee extended invitations were able to make it here 
today.
    There are views by stakeholders that are not adequately 
represented here today, for a variety of reasons. Most everyone 
who is familiar with this process is aware that the written 
testimony may be submitted for the record. And I hope that the 
groups that were not able to join us today will take the 
opportunity to submit testimony for the record.
    With that, I have concluded my opening statement. We would 
turn first then to our Ranking Member, Senator Boxer.
    Senator Boxer. Thank you so much, Mr. Chairman. I am very 
pleased to be your Ranking Member for the remainder of this 
Congress. As we all know, Senator Reid's duties as the 
Assistant Democratic Leader precluded him from really being as 
active on this subcommittee as he wanted to be. With all of 
your concurrence, and I really appreciate it, I have agreed to 
do this.
    [The prepared statement of Senator Crapo follows:]

  STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM THE STATE OF 
                                 IDAHO

    Good morning and welcome. This is a hearing of the Environment and 
Public Works Committee's Subcommittee on Fisheries, Wildlife, and 
Water. Today, we will be hearing testimony on S. 2417, The Water 
Pollution Program Enhancements Act of 2000.
    Senator Smith, Chairman of the Environment and Public Works 
Committee, and I introduced S. 2417 last month in response to both 
concerns with the current existing TMDL program and the proposal by the 
Environmental Protection Agency (EPA) to promulgate rules regarding the 
total maximum daily load (TMDL) and National Pollutant Discharge 
Elimination System (NPDES) programs under the Clean Water Act.
    Since the draft rule was published last August, this is the eighth 
congressional hearing that has been conducted on the TMDL issue. It is 
an exceedingly large and complex rule, and its impacts, if implemented, 
are extremely far reaching. This regulation would affect every region 
of the country, it would affect both rural and urban areas, public and 
private entities, and it would affect public and private lands. 
Furthermore, there are major economic consequences associated with this 
regulation.
    One would think that a rulemaking effort of this magnitude, with 
these types of serious and widespread impacts, would be, for example, 
based on science. As a matter of fact, we have learned through the 
series of hearings conducted by both the Environment and Public Works 
Committee and this subcommittee, that what EPA is asking States to do 
is not based on science. There is little scientific basis that 
justifies the elements contained in the proposed rule and the General 
Accounting Office has testified before this subcommittee that the vast 
majority of States do not currently possess the reliable data necessary 
to even develop TMDLs.
    With significant concern regarding the cost of implementing the 
proposed rules, it would be a logical step for EPA to have completed a 
comprehensive economic analysis. Although EPA asserts that the cost of 
implementing the rules would be minimal because the rulemaking is a 
clarification of existing regulations, the costs of the proposed rule 
have never been adequately examine. This seems like a particularly 
important undertaking in view of the overwhelming concerns with respect 
to costs, and some of the exorbitant estimates that have been provided 
by organizations outside the Federal Government.
    It also seems as though EPA might have engaged the organizations 
that will be left to implement these regulations before rushing to 
finalize them. After having been the EPA's partners in implementing the 
Clean Water Act for nearly the last 30 years, EPA did not engage the 
States in a collaborative manner in developing these regulations.
    Although EPA failed to accomplish these very important and common 
sense tasks, they cannot be left undone. S. 2417, the Crapo-Smith bill 
addresses many of the inadequacies of the proposed rules.
    S. 2417 would: Provide nearly a half a billion dollar increase in 
funding for sections 106 and 319 activities under the Clean Water Act, 
such as acquiring reliable data through site-specific monitoring and 
implementing watershed management strategies aimed at improving water 
quality. Direct the EPA to contract with the National Academy of 
Sciences to obtain better science with respect to the TMDL program and 
in-depth analyses of the true cost of implementing the TMDL program. 
Create a watershed management pilot program in order to evaluate State 
programs that have been successful in improving water quality through 
incentives and innovative technologies. Finally, the bill would provide 
an 18-month time out while the National Academy of Sciences is 
conducting its study before EPA could finalize the rules.
    I think it's important to note that since the rules where 
published, EPA has proposed some modifications to the regulations in 
response to the public comments received and congressional oversight. 
At this point, I lack the details to draw any conclusions about these 
modifications, and am, frankly, skeptical about whether the 
modifications address the concerns that have been raised. But I look 
forward to hearing more of the details about EPA's proposed changes and 
the thoughts of our witnesses on those proposed changes.

    Senator Crapo. We welcome you.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much. I do look forward to 
working with you and all our colleagues.
    I want to take a moment to simply say how important the 
quality of water is to my home State of California. In many 
ways, the quality of life in California depends on our water.
    Water has even been likened to gold in my State, because it 
is in such short supply. And yet, it is so critical to 
recreation, to tourism, to health, to fish and wildlife, to 
agriculture, to industry, and of course, to the many millions 
of people who live there.
    We have 34 million people in California. I like to remind 
you sometimes, if I look frazzled some days, you know why. And 
we are getting up to 50 million in the year 2025. That is the 
prediction.
    So water is really very, very key. And for that reason, I 
do have a great respect for my Chair, here. But I do have 
serious concerns about S. 2417.
    The bill would delay the implementation of the new EPA rule 
designed to clean up approximately 40 percent of the nation's 
waters that still do not meet water quality standards.
    As you know, in 1972, Congress wrote the Clean Water Act. 
In the law, we set out an important goal, restoring the 
nation's rivers, streams, and lakes to make them once again 
fishable and swimmable. And it was, I believe, President Nixon, 
is that correct, who signed that law.
    Now while we have made many strides toward accomplishing 
this goal, we are still falling far short. In California, over 
25,000 stream, river, and coastal miles are not meeting water 
quality standards.
    It was for that reason that I, for one, was very pleased 
when the EPA proposed to strengthen the Clean Water Act total 
maximum daily load program. This rule would help us tackle the 
single most significant water pollution problem still facing us 
as a nation, polluted runoff.
    While the rule is not perfect, and in fact, I believe it 
could be strengthened, in a few respects, it does represent an 
important step forward and a step that is long overdue.
    It is important to note that EPA's authority to issue the 
rule, which has been a subject of dispute in this committee, 
was recently reaffirmed by a Federal District Court in 
California. That court held that EPA had the authority to 
regulate the sources of polluted runoff under this program.
    S. 2417, however, would stop the EPA from moving forward 
with this rule. The bill is based on the premise that we need 
more time to study the cause of the nation's remaining water 
quality programs. But we know already that our failure to 
control polluted runoff is the basic cause of our failure to 
clean up our waters.
    Further, EPA's rule gives States 15 years to develop the 
water pollution limits that are called for in the Clean Water 
Act. So even if a State needs more specific information, they 
have been given an extremely long period of time to obtain it.
    Now I do understand that EPA's proposal has been reviewed 
as controversial, and I do respect my colleagues who do not 
agree with it. But it really is important to remember that this 
proposal was included in the original 1972 law. And over the 
years, although EPA has made several half-hearted efforts to 
implement it, this new rule reflects, I believe, the first 
genuine attempt to breathe life into the program.
    So for the Californians who have waited 28 years to see EPA 
implement this program, I think the time has come to move 
forward.
    I would also like to note that the State of California has 
supported EPA's rule. In fact, the State filed a friend-of-the-
court brief on the side of EPA in Federal litigation over this 
program.
    For that reason, I was disappointed that the only witness 
from my State here today is generally opposed to the rule and 
supportive of S. 2417. So while I welcome this witness, we did 
try to work with your staff to include one that represented the 
views of our State.
    My State takes the view that water is critical to all of 
us, that all of us need to lend a hand in solving our remaining 
water quality programs, if we are to realize the Clean Water 
Act's goals.
    So I do look forward to hearing from my colleagues on both 
sides of the aisle and from the witnesses. Again, Mr. Chairman, 
it is a delight to work with you.
    Senator Crapo. Thank you, Senator Boxer.
    Senator Thomas.

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

    Mr. Thomas. Thank you, sir.
    I appreciate the hearing. As you said, we have had a number 
of hearings on this matter, but hopefully we are getting down 
to it.
    I think we should have hearings. I consider it sort of an 
unjust burden on our nation's landowners and communities. All 
of us agree on water quality. I do not think you can justify 
everything that is done because you say I like water quality. 
We all like water quality.
    But what we have here, of course, is a problem with our 
States. In Wyoming, conservation districts, landowners, and the 
Department of Environmental Quality have long questioned the 
availability of information, of course, to implement the 
actions that are called for.
    Earlier this year, GAO validated their concerns. GAO found 
the States overwhelmingly lacked the data to both identify non-
point source and develop non-point source TMDLs.
    Furthermore, GAO indicates that most all States cited the 
need for additional funding and staffing. Most States also 
cited the need for additional methods and technical assistance 
to analyze complex problems. So there are some problems out 
there.
    The court decision that was mentioned here also had 
something to do with the States having jurisdiction. So I do 
not think that is quite as clear as my friend from California 
would suggest.
    I am pretty upset with EPA that, despite the thousands of 
comments, it is going to go ahead with this rule on June 30. It 
has indicated they are going to change some of it, but the 
regional people are putting it out as the way it was. I think 
you need to explain that, Mr. Fox, as we go by. I think it is a 
little rushed for that.
    I am a cosponsor of this bill. I think it is a bill that 
has merit. We have already described what it is. Since the 
passage of the Clear Water bill, we have spent $80 billion on 
point source reduction, and only $2 billion on non-point 
sources.
    There is not the kind of material that is there to allow 
people to move forward with this rule. So I think we are going 
to have lots of examples from the States today. And I hope that 
we can come to something that is sensible.
    Thank you, sir.
    [The prepared statement of Senator Thomas follows:]

 Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming

    Thank you Mr. Chairman for holding today's hearing.
    S. 2417, the ``Water Pollution Program Enhancements Act of 2000'' 
addresses what I consider an unjustified attack on our nation's 
landowners and communities. The Administration's proposed rule 
regarding total Maximum Daily Loads (TMDLs), as part of the broader 
Clean Water Action Plan, is an initiative I have followed closely over 
the last 2 years.
    In Wyoming, our Conservation Districts, landowners and Department 
of Environmental Quality have long questioned the availability of data 
and resources necessary in order to implement the various actions 
called for under the Clean Water Action Plan. Earlier this year, the 
General Accounting Office validated their concerns. The GAO found that 
States, overwhelmingly, lack the data to both identify non-point 
sources and develop non-point source TMDL's. Furthermore, the GAO 
report indicates that almost all States cited a need for additional 
funding and staff. ``Most States also cited the need for additional 
analytical methods and technical assistance to analyze complex 
pollution problems and develop TMDLs.''
    Mr. Chairman, I am dismayed that the EPA, despite the thousands of 
comments submitted on the proposed rule and the inadequacies found by 
the GAO, remains adamant that the TMDL rule will be final by June 30th. 
it is clearly a rushed proposal--and unfortunate that this 
Administration continues to push its environmental agenda, no matter 
the cost.
    I cosponsored S. 2417 because it provides a much needed balance to 
the EPA's approach:
     First, it requires the National Academy of Sciences to 
report on the quality of science used to develop and implement TMDLs; 
the costs associated with implementing TMDLs; and the availability of 
alternative mechanisms to reduce pollutants from both point and non-
point sources.
    It seems to me that prior to implementing a rule of such magnitude, 
we should already have this information.
     Second, the bill authorizes increased appropriations for 
States to address data quality problems and to enhance non-point 
pollution reduction efforts.
    Since passage of the Clean Water Act, the Federal Government has 
directed $80 billion toward point source reduction efforts--non-point 
sources have received only $2 billion.
    Lastly, while I support increasing Federal assistance to the States 
for non-point source programs, I strongly believe that Congress must be 
explicit in how those funds are to be made available to the States. I 
know each of our States can provide examples of where they were 
required, by the EPA, not Congress, to undertake or meet additional 
requirements before receiving funds. It is time to stop the EPA's 
attempts to bypass Congressional intent.
    Thank you Mr. Chairman for your leadership on this issue.

    Senator Crapo. Thank you.
    Senator Baucus.

             OPENING STATEMENT OF HON. MAX BAUCUS, 
             U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Baucus. Thank you very much, Mr. Chairman.
    This is an important hearing. It is a concept that is here, 
that we have to deal with and not duck. We should deal with it 
very directly and honestly.
    Since 1972, when the Clean Water Act became law, I think it 
is clear that we have made a lot of progress in cleaning up our 
water. I can remember, and a lot of us can, the old Cuyahoga 
River burning.
    And I can remember, Mr. Chairman, the Potomac River. You 
could not get near it. It just smelled so bad. You would not 
dare fall into it. I am being serious. It was not a pretty 
sight.
    There are lots of examples like that. Over the years, this 
country has done a very good job to make our water cleaner than 
it was.
    It is incredible what this country has done, even beginning 
back in 1972, especially with respect to point sources; The 
stuff that comes out of the municipal plants and private 
company plants and so forth; We have done a very good job.
    I think it is fair to say, however, that we still are far 
from reaching our goal--clean rivers, lakes, streams, and 
coastlines. All of us can think of lots of examples where we 
have not met that goal.
    And this is where TMDLs come in. They provide a targeted, 
flexible approach to pollution problems in an individual 
watershed.
    And it is much like the State implementation plans under 
the Clean Air Act. That is, it is an umbrella approach, in 
addition to addressing each of the finite sources, as we do in 
the Clean Air.
    In addition, under the Clean Air Act, we have the State 
Implementation Plans and the ambient standards. And it is 
necessary. That is the only way we can honestly work in an 
effective way to make our air cleaner.
    The same concept applies here, because it is a fluid. Air 
and water are fluids, just different kinds. It is a little bit 
more difficult, frankly, to deal with the problem with water, 
because there are more sources of pollution. Whether they come 
from underground into the stream or runoff, or whether it is a 
point source, or whatever else it might come from. But making 
it more difficult does not mean we should duck it.
    EPA's proposed rule, I think, makes some improvements. In 
the heart of the rule, it clarifies the TMDL program, which 
requires implementation plans to go along with the law. I think 
it is important to remind ourselves that back in 1972, the 
States were required to have programs. Here it is 2000, and it 
has not happened.
    Now there may be good reasons why it has not happened. But 
again, this is an issue that has been around a long time. It is 
not something that is new and just recently sprung upon us.
    The rule also gives States more time to complete their 
lists and more time for allocations and plans. I think, 
frankly, that is a pretty good tradeoff.
    But there still are problems with the EPA rule. I am 
concerned, in particular, about the silviculture provisions, 
which I think take a long and winding path that may not get us 
to the right destination.
    Furthermore, there are many other groups and, in fact, most 
groups from all sides have criticized the proposed rule; 
obviously, for different reasons. The environmental community 
does not like it. Most of them do not like it, in fact. It is 
under attack, as I said, virtually from all sides.
    This brings me to your bill, Mr. Chairman. I very much 
agree that we should give the States more money to complete 
TMDL. That is clear. I think we all agree on that point.
    I am a little less certain, though, about the pilot 
projects, and also a little less certain about the National 
Academy of Science's study.
    And the reason is because, as I understand it, EPA convened 
a group of stakeholders who worked on TMDLs for at least 2 
years, submitting detailed conclusions. We have studied this 
thing. I am not sure what another study is going to add.
    Then there is section 6 in the bill, which effectively 
delays any new TMDL rule for 18 months. Mark me down as 
skeptical. Even if the NAS study provides useful information, 
it is my judgment that it is unlikely to make our decisions 
here any easier. It will just put them off.
    Before falling back to delay, I would like to know whether 
it's possible to fix the problems with the rule, whether we can 
work with EPA here on this committee to make the necessary 
changes in order to have a strong TMDL program that has broad 
support.
    That is the whole key here, how to build support for a 
reasonable, good, common sense TMDL program, because the 
concept is accurate. The concept is right. I do not think 
anybody disputes the concept. It is just how we do it.
    Clean water, as an issue, is not going to go away. It is 
going to be a greater and greater and greater problem in this 
country as the population grows. The Senator from California 
mentioned the problems of growth in California.
    I might add, I was in Atlanta not many weeks ago. And there 
was a key problem that everybody raised in Atlanta, everybody. 
What is the problem with Atlanta? They said congestion and 
water. Atlanta has a huge water problem. It just needs more 
clear water.
    The TMDL concept will also take a little of the pressure 
off the point sources, the identities who have more pressure 
put on them to clean up the water. So the non-point sources do 
degrade the water. There is no doubt about it.
    Sure, it is much more difficult to try to deal with. There 
is no doubt about that, either. But it really is not fair to 
put all the burden on the point source folks, when there are 
some non-point source people who are also causing degradation 
of water.
    And the umbrella concept, I think, is here. You cannot duck 
this issue. Let us stand up and do what we are elected to do.
    It is not going to be easy. But I just urge us to do it in 
a cooperative, non-partisan way. We can open up our ears, and 
kind of sit down like good honest men and women, and just get 
this thing done.
    Thank you.
    Senator Crapo. Thank you.
    The chairman of our committee, Senator Smith.

             OPENING STATEMENT OF HON. BOB SMITH, 
          U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

    Senator Smith. Thank you very much, Mr. Chairman, and thank 
you for holding this hearing on this important bill. Thank you 
for introducing it. I am pleased to be a cosponsor.
    This legislation addresses numerous concerns with the 
proposed regulation on the total maximum daily loads. Since EPA 
has released the proposed rule on TMDL, there have been a lot 
of things that have happened.
    I think it should give a clear signal that something is 
wrong with the rule and with the proposal to implement it. We 
have some 35,000 comments, about 80 percent of which are 
negative, to the proposed rule change. Thousands of people have 
attended town meetings all across the country.
    There have been, I think, seven congressional hearings that 
have taken place; three in this committee. There was one that 
Mr. Fox was at in New Hampshire. We are planning another one in 
another location, shortly.
    I want to say, Mr. Fox, although at the hearing in New 
Hampshire, most of the people there, with a couple of 
exceptions, were against your position, you were respectful, 
and you were firm in your presentation.
    I respect you for that. We do not agree, but you handled 
yourself very well. And a lot of people indicated that, that I 
talked to, even though they disagreed with you.
    And I think for the most part, the people up in northern 
New Hampshire were respectful to you, with one or two 
exceptions, which was not right, but it happened.
    But you know, we have bipartisan support in both 
legislative bodies in this. The Environmental Protection Agency 
has admitted some faults in the drafting, that the rule was not 
clear. The Agriculture Department had concerns with it, which I 
know the chairman is planning to get into in a few moments.
    GAO released a report outlining a substantial lack of water 
quality, due to insufficient economic and personnel resources. 
And, yet, in spite of all this, we stay on this fast track of 
an arbitrary June 30 deadline.
    And I think I have made my positions pretty clear, in terms 
of what my objectives are as the chairman of this committee. I 
support the Clean Water Act. I recognize fully what it has done 
to clean up the water supplies, whether it be the waterways 
around this Nation, including the Potomac River.
    But you know, I would have to say to you, for centuries and 
centuries here in America, we have farmed and we have practiced 
forestry. Now in approximately 45 days, we are going to 
implement a rule.
    And it is as if we do not implement it by June 30, the 
whole world is going to come to an end. All of the water is 
going to be polluted. We are not going to be able to get any 
more water cleaned. We hear all these horror stories.
    But the truth is, this is the wrong approach, with all due 
respect. There are many millions of people out there in America 
who farm.
    And yes, there are a lot of large logging industry people 
out there, and there are also a lot of small woodlot owners, 
who practice good practices, good forestry, good agriculture, 
who take care of the land. They live on it. They cannot live 
without. That is very important to them. They hunt on it. They 
fish on it. They hike on it. They farm on it. They forest on 
it. They cut fire wood. They protect that land.
    They are all over America. They are in New Hampshire. They 
are in Arkansas. They are in Montana. They are in Idaho. They 
are in California.
    I just do not understand why we would want to create this 
confrontation when, in fact, I know, having talked to many of 
these people, and I know Mr. Fox, you met with several, but at 
least one in particular who I know, a woodlot owner in New 
Hampshire, who wants to work with the EPA in not a 
confrontational way, but a cooperative way to work together. 
What are the things that you feel we need to do, to do a better 
job? If you have information tell us, because we want to do a 
better job.
    But they do not want to be put on the other end of some 
permit and some regulation that is going to cause class actions 
suits or some other lawsuits or stakeholder suits to keep them 
from doing what they need to do on their land to survive.
    We have 22 co-sponsors on this legislation. And Senator 
Crapo has gone into the details of what it does. I will not 
repeat that.
    But let me just conclude by saying, you know, as the 
chairman of the committee for the Clean Water Act, I believe 
strongly that we have to move this legislation.
    And I do not like the fact that we have to do it, because I 
think this is a reactionary policy. I do not think that is good 
environmental policy. I think good environmental policy is to 
move forward in a proactive sense, and not a reactive sense.
    We did have to react to terrible problems in the 1960's, 
1970's, and 1980's, when we realized what we had done, and we 
passed these laws.
    But now, things are changing. There is a new paradigm out 
there. People want to help, want to be cooperative, want to 
work together to not create more problems. And this flies right 
in the face of everything we need to do to stop creating more 
environmental disasters.
    We have got 200 organizations that have written to me, 
personally, and I am sure other Senators have received them, in 
support of this legislation, ranging from State and national 
agriculture, forestry associations, U.S. Chambers, and National 
Association of Conservation Districts. That is just to name a 
few.
    I received a letter this week from the Governors of 
Wyoming, Idaho, Colorado, Nebraska, Montana, Nevada, and 
Arizona supporting the legislation, again out of desperation, 
knowing the impact that this is going to have.
    And it is going to have a negative impact, because people 
are going to wind up being in court. They are going to be 
thrown off their land. We are going to have parking lots. That 
is what we are going to have in a lot of areas of this country, 
as a result of this rule, if it is implemented.
    That is not good. I would rather have a clear cut than a 
parking lot. The worst clear cut is better than a parking lot. 
And we are not talking about bad clear cutting, for the most 
part.
    So with all due respect, and I have indicated this to you 
privately and publicly, Mr. Fox, I think you are making a 
terrible mistake doing this.
    It is everything that we hear bad about the EPA 
personified, right up there, so everybody can see it; that you 
are the bad guys from Washington. You are coming in there, you 
are pushing, and you are aggressive. And you are not giving the 
good stewards of the land the opportunity to work together.
    I deeply, deeply resent it. It is exactly the opposite of 
what we are trying to accomplish here on the committee. I hope 
reason will prevail and that you will understand that again, 
after centuries of practicing forestry and agriculture, there 
is no way that in the next 45 days, if we do not pass this 
rule, that something terrible is going to happen. That makes no 
sense.
    I urge you, and I do not know whether this legislation will 
pass or not. I mean, I know what the political pressures are 
here, and I know what the political pressures are on the other 
side of the aisle. But I can tell you one thing, good 
environmental politics is not always good environmental policy. 
As a matter of fact, sometimes it is bad environmental policy.
    I am sorry that we are at this point, and I hope that 
reason will prevail before it is over. I am not very optimistic 
about that, but I hope that reason will prevail.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Smith follows:]

      Statement of Hon. Bob Smith, U.S. Senator from the State of 
                             New Hampshire

    Good Morning. I want to thank Senator Crapo for holding this 
legislative hearing on a very important bill he and I introduced on 
April 13, 2000, S. 2417 the ``Water Pollution Program Enhancement Act 
of 2000.'' This legislation addresses numerous concerns with the 
existing and proposed regulation on Total Maximum Daily Loads.
    Since EPA released the proposed rule on total Maximum Daily Loads 
last August:
     30,000 comments have been filed;
     town hall meetings across the U.S. have drawn thousands of 
people concerned about the rule;
     seven Congressional hearings have taken place (3 in this 
committee);
     bipartisan legislation on this issue has been introduced 
in both legislative bodies;
     the Environmental Protection Agency has admitted failure 
in drafting a clear rule; and
     GAO released a report outlining a substantial lack of 
water quality data due to insufficient economic and personnel 
resources; and
    And yet, in spite of all of this, EPA apparently remains committed 
to finalizing this rule on June 30th.
    Organizations representing a broad range of perspectives, including 
the environmental community have asked for a ``time out.''
    Senator Crapo and I not only agree that a time out is needed but 
also that many other concerns need to be addressed. We introduced this 
legislation along with 22 other co-sponsors.
    S. 2417 addresses three major issues that have been clearly 
outlined in Congressional hearings before this committee.
    First, the States are in great need of increased funding so they 
can implement nonpoint source programs, conduct monitoring to develop 
scientifically based water quality programs, issue permits, and list 
waters under existing requirements.
    Second, there are a lot of unanswered questions about the cost and 
scientific basis underlying the implementation of TMDLs. We also need a 
better understanding of alternative programs or mechanisms that exist 
at the State level that may be more effective to accomplish the same 
goals of the TMDL program. These questions need to be answered before 
we mandate more requirements on the States and private sector. This 
legislation asks the National Academy of Science (NAS) to answer these 
questions.
    Third, we need to take a time out. Before we significantly expand 
the existing TMDL regulatory program we should have answers to 
questions like:
     Do States have the data they need to implement the 
proposed rule?
     What will the rule cost?
     Is this rule the best, most effective way of targeting 
resources to meet our State water quality goals.
    To proceed without these answers is irresponsible.
    As the Chairman of the authorizing committee for the Clean Water 
Act I will do everything I can to move this legislation through the 
committee quickly in hopes of having it signed into law. Over 200 
organizations have written to me in support of this legislation, 
ranging from State and national agriculture and forestry associations, 
the U.S. Chamber of Commerce and the National Association of 
Conservation Districts to name just a few. I received a letter earlier 
this week from the Governors of Wyoming, Idaho, Colorado, Nebraska, 
Montana, Nevada and Arizona supporting this legislation.
    In closing, I'd like to emphasize one point. I know there are 
critics of our bill who will claim that we aren't serious about 
cleaning up our nation's rivers, streams and lakes. They are wrong. I 
strongly support the goals of the Clean Water Act and, as Chairman of 
this committee, I am committed to seeking the best programs to achieve 
fishable and swimmable waters. I don't believe, however, that EPA's 
proposed rule is the answer.
    I look forward to hearing from the witnesses on this very important 
issue. Thank you.

    Senator Crapo. Thank you.
    Senator Wyden.

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

    Senator Wyden. Thank you, Mr. Chairman. I have listened to 
five opening statements now, this morning. And I find myself in 
agreement with each of the speakers on several of the points 
that they have made.
    Senator Baucus. That is why you are successful, Senator.
    Senator Wyden. That is arguable.
    [Laughter.]
    Senator Wyden. But I think we can find common ground on 
this committee, and that is what I would like to do.
    As you know, Mr. Chairman, in our part of the world, we 
have gotten hundreds and hundreds of letters, each of us in the 
Pacific Northwest. And almost all of them, in effect, say, and 
I think Senators Boxer and Baucus said it very well, ``We want 
to clean up the Nation's waters.'' And to do it, we have got to 
be bolder and more effective in dealing with the nonpoint 
sources of pollution.
    At the same time, what we have heard from our constituents 
is that they want to make the machinery of government, the 
wheels of government, more user-friendly. They want to make a 
management process that is workable.
    I think we know that the end gain, to a great extent, 
involves taking a watershed approach, a kind of holistic 
approach, where we look at all the pollution sources, point and 
nonpoint, within that watershed.
    So what I am going to try to do, Mr. Chairman, and you and 
I have talked, I know, a number of times already, is to try to 
develop a third path alternative that would build on the good 
things in your bill.
    The two that I am particularly attracted to are the fact 
that you all are willing to fund more generously the best 
management practices program to deal with non-point pollution. 
I appreciate the fact that you are willing to, on an ongoing 
basis, review the science associated with the TMDL program. And 
I think that is something that every member of the committee 
can be for.
    I think if we can pick a third path that incorporates some 
of the additional principles that I think are important to make 
this system more responsive and more flexible, and particularly 
find a way to link the clean water requirements with the ESA 
requirements, if we do that we will save folks time and money 
while we cleanup our treasured waters.
    I think we can get there. I think we can get a bill that 
will receive widespread bipartisan support in this committee, 
and go forward on the floor. The alternative, of course, is 
more gridlock.
    What we have sought to do in our part of the world, and as 
westerners, we are confronted with these natural resources 
issues all the time, and I suspect for Bob, it is the same way 
in New England, we try to bring people together and find common 
ground. I think we can do it.
    I will offer a kind of third path legislative proposal, 
between 
S. 2417 and building on the good features that you all have, 
and the EPA proposal, so that we can try to find common ground. 
As you know, we have talked about that. I intend to work very 
closely with you and Senators Boxer and Baucus in this regard.
    Thank you for the chance to participate. In some sense, I 
benefit from being able to go last, because all my colleagues 
have spoken and, frankly, have each made points that I find 
myself in agreement with. It makes me feel more optimistic that 
we can get a common ground approach here and address this 
issue.
    I thank you.
    Senator Crapo. Thank you, Senator Wyden.
    As you know from our discussions, I agree with your 
approach on trying to address both the Endangered Species Act 
and the Clean Water Act, as we try to find an efficient way to 
move forward. I look forward to working with you on that.
    The problem we face with this legislation is the June 30 
deadline that we have to deal with. So I look forward to your 
support, if we can get it, in addressing that problem, in the 
short term, and working in the longer ranges for the solutions 
you have identified.
    Senator Wyden. Without continuing, I would only be 
concerned that if we take action by June 30, that further 
polarizes the debate on this issue, which I suspect we would 
do.
    If we just set aside the EPA rule and did not offer a 
comprehensive alternative, I think then we would undermine the 
very important comments that you and Senator Smith and others 
have made about making the machinery of government more user-
friendly.
    So I am prepared to work to address this by June 30. I 
think that is important to have that date. But I hope we will 
not take action that will further polarize the debate that has 
already generated these hundreds and hundreds of letters, and 
makes it tough for us to solve that.
    Senator Smith. Mr. Chairman.
    Senator Crapo. Yes.
    Senator Smith. I appreciate the comments of the Senator 
from Oregon. Unfortunately, though, I have just been told that 
your party has objected now to us meeting. They are saying now 
that they are going to impose a 2-hour rule, which means that 
at 11 o'clock we have to shut down. And here we sit here 
talking about bipartisanship and working together.
    I mean, the issues on the Senate floor right now are 
totally unrelated to this. So here we are. We are stuck, unless 
something changes.
    It is just very frustrating. We talk, and yet, when it 
comes to action, politics takes precedence. That is exactly 
what is happening here, and everybody knows it. It has nothing 
to do with this.
    Why should you shut down committees where witnesses will be 
inconvenienced, and cannot testify now because we will have to 
shut down at 11 o'clock, because of some partisan wrangling on 
the floor on an issue that is totally unrelated to this? So 
maybe somebody can explain to me how that is good 
bipartisanship.
    Senator Boxer. Let me just comment on that, if I might, Mr. 
Chairman.
    Senator Smith. Yes, I would like to hear your answer on 
that.
    Senator Crapo. Go ahead, Senator Boxer.
    Senator Boxer. Yes, I will be very happy to.
    There is a rule in the Senate that there can be a 
disagreement that does, in fact, say that the committees cannot 
meet.
    I do not know if you were on the floor, Senator, when 
Senators Lott and Daschle had a very deep and disturbing, I 
think, debate about where we are in this U.S. Senate, in terms 
of our ability to work together. It is a very important issue.
    But to say that the fact that the Democrats exercise our 
rights as the minority is somehow wrong, I think, then you 
would have to change the rules of the Senate. We do have that 
capacity.
    I think we do have some problems. I do not know exactly 
what prompted that call to be made, not to agree. But it may 
well be related to the fact that, as you know, yesterday, the 
majority party precluded us from offering amendments to 
Appropriations bills that are not construed as being completely 
germane. This is the first time that has happened in 16 years.
    Our Democratic leader felt, first of all, that he had an 
agreement to vote on the two gun issues. Then suddenly, we 
almost lost that opportunity. And the price we had to pay for a 
vote on that was to allow that issue to be voted on. So there 
are some disturbing matters.
    But I just want to pick up where Senator Wyden left off 
here for a second. I honestly do believe we can work in a 
bipartisan way on this issue. I really, really do.
    Short of saying, let us just throw this rule out, I mean, I 
think what you heard, Mr. Chairman, are some people reaching 
out here to work together. Just because we cannot have the 
committee meet past 11 o'clock does not mean that we cannot 
talk to each other on this matter.
    So I would hope that we can pick up on Senator Wyden's 
point. And when I heard Senator Baucus, you know, he also 
expressed things that he agreed with.
    So it is true that we are having a real serious and 
difficult disagreement on the rights of the minority in this 
Senate. But it should not preclude us perhaps from setting an 
example, because we do work together.
    Senator Baucus. Mr. Chairman, we have 20 minutes. I suggest 
we listen to the witnesses.
    Senator Crapo. I think that I have been discussing this 
with the chairman. We face a problem now in that we have seven 
witnesses who are here to testify. And if we allow any of them 
to go and present their case before others are allowed to 
present theirs, and not allow others to present their case, it 
is an extremely inappropriate way to proceed, I think.
    I think that we may just simply not take testimony, and 
spend the next 20 minutes, if we would like to, to discuss this 
issue further among ourselves.
    Senator Baucus. Or you can have each of them speak for 3 
minutes.
    Senator Crapo. Well, we could, but I am afraid that that 
would probably be less productive, I think. I realize this is a 
serious imposition on the witnesses, from all perspectives, who 
have changed their schedules to come here today. But I think 
that giving each witness 3 minutes would probably stop any of 
them from being able to present any part of their case 
effectively.
    Senator Baucus. I agree.
    Senator Crapo. So at this point, I am not going to recess 
the committee, because I am going to stay here, if any of you 
would like to spend the next 20 minutes talking about it. But I 
will excuse all of the witnesses and give you our deepest 
apologies. We did not expect this.
    Senator Wyden. Mr. Chairman.
    Senator Crapo. Yes.
    Senator Wyden. If we could spend a few minutes talking, 
because one of the things that I think there was bipartisan 
support for was giving the States a really key role.
    Senator Crapo. All right, let me excuse the witnesses, 
first then, and then let us do that.
    Senator Wyden. OK.
    Senator Crapo. The witnesses will be excused. And, again, 
you have our apologies for what has happened. I think every one 
of us, for our own reasons, are very unhappy with the 
developments. We do give you our deepest apologies, but we 
cannot proceed. Thank you.
    I would indicate that all witnesses still do have the right 
and most have already submitted written testimony. That 
testimony has been reviewed and will be reviewed.
    Senator Baucus. Mr. Chairman.
    Senator Crapo. Senator Baucus.
    Senator Baucus. Mr. Chairman, I would just like to address 
the problem we have in the Senate now, of excessive 
partisanship. And I might say, it is the worst I have seen it 
in the 22 years I have been in the Senate.
    We are here, at this point, forced to cancel this hearing 
at 11 o'clock, because of an action that the chairman of the 
Judiciary Committee just made; namely, he said there would be 
no more hearings on judges until after the recess, and he 
promised there would be hearings.
    I want to address that in two points. First of all, I think 
it is irresponsible for the Congress not to have hearings on 
and process the judicial nominees that the President of the 
United States submits to the Congress.
    Under the Constitution, the President submits the judicial 
nominees to the Senate, and the Senate has the right to advise 
and consent. Clearly, the Senate should not reject the 
President's nominees and should not hold up justice in America, 
unless there are very strong, compelling reasons not to confirm 
a particular nominee. At the very least, there should be 
hearings. And at the very least, we should move ahead and 
process these nominees.
    We hear about judicial backlog. We hear about vacancies in 
the courts. And I think it is very irresponsible for the U.S. 
Senate not to have hearings and not process these.
    Let me just finish. I have the floor here, Mr. Chairman.
    We have confirmed only seven judges this year, only seven.
    Senator Crapo. Senator Baucus, would it be possible----
    Senator Baucus. Let me finish. I have the floor, Mr. 
Chairman. I will relinquish it in a second.
    So it is wrong. It is just wrong. And the second reason we 
are here is because of, what I would call, a breach of faith. 
We had an understanding, the Democratic side's understanding, 
that we would have hearings on and we would process judges on 
the floor of the Senate.
    Now, lo and behold, the chairman of the Judiciary Committee 
says, no more hearings until June. What are we supposed to do, 
the majority party, just kind of roll over and play dead?
    No, we are Senators. We are elected to fulfill our 
responsibilities and to do the best we can as Senators, in 
response to our constituents.
    So all I am saying is, and I do not want to be partisan 
about this, but I just want to give you the facts. Those are 
the facts. Those are just the straight facts.
    And it behooves all of us on both sides of the aisle to 
frankly figure out some way to get together here, so that we do 
not have these problems nearly to this degree.
    And I might say, Mr. Chairman, leadership starts at the 
top. I am not referring to you, Mr. Chairman. You have done a 
great job here. I am talking about the floor. Leadership starts 
at the top on both sides.
    And my judgment is that the way we get rid of the 
partisanship, frankly, is for the leadership to sit down and 
realize that the politics is the best policy. We do not have 
that now. It is regrettable, and that is why we are going to 
have to close up here at 11 o'clock.
    Senator Crapo. Well, Senator, I appreciate your comments. 
And in an effort not to get into a partisan battle, I would 
simply say that I do not know the reasons for the chairman of 
the Judiciary Committee's actions.
    I do know the chairman of the Judiciary Committee. He is a 
very reasonable and decent man. And if he took the course that 
he is described to have taken here, I believe he did so for 
some reason.
    However, there are points that each of us could make in 
terms of the difficulties that we are facing on the floor of 
the Senate, today. And I do not believe that it would be 
productive for us to get into that. You have made your points. 
I am not going to engage you on it. There are points that I 
could make.
    What I would like to do is to spend the 15 minutes that we 
have here to talk about the proposals for us to find a 
bipartisan way for us to work together on the issues before 
this committee today.
    In that context, I would simply say to the Senator from 
Oregon that I very much look forward to working on and agree 
with him that I believe we can build a bipartisan path forward 
to achieve some of the objectives that we have all talked about 
here, including the expanded objectives of addressing both the 
Endangered Species Act and the Clean Water Act in a way that 
will bring a lot more common sense to the administration of 
both statutes.
    The only problem that I see is that we have now 5 to 6 
weeks. And if we could get that comprehensive solution put 
together in 5 to 6 weeks and move it, I would do it. And I will 
work with you, as you know we have, to try to get that done.
    But failing in that, we are faced with a deadline that has 
been imposed on us by the EPA of action that will be taken. And 
I would like to know how we could get past that problem.
    Senator Baucus. Mr. Chairman, let me give you some 
suggestions.
    Senator Crapo. Senator, I let you speak. Let me speak, 
please.
    I would like to know how we can get past that problem. And 
it is not right to simply say that it is this committee or this 
Congress that is creating the deadline.
    Right now, the EPA is going to do things its way. The 
issues are going to be solved the EPA's way in the proposed 
rule or whatever modifications they may make to it. And the 
answers and the solutions are going to be made essentially law 
under the regulation in 5 to 6 weeks.
    So if we are going to build this compromise, and if we 
cannot do it within 6 weeks, then we need to find some way to 
have a breather for us to not then have to be put into a 
position of dealing with it after the issue has been resolved 
by a regulatory agency. That is the question that I would like 
to see us find a path around.
    The Senator from Oregon had asked to comment.
    Senator Wyden. I was interested, but maybe I ought to let 
my Ranking Member speak. Then if I could have a minute after 
that, that would be great.
    Senator Crapo. Senator Baucus.
    Senator Baucus. Mr. Chairman, I was only going to suggest 
that we pursue a course that we pursued under the Endangered 
Species Act.
    As you all recall, Senator Kempthorne and I and Senator 
Reid and Senator Chafee sat down and just rolled up our 
sleeves. We worked out a very good compromise of reform to the 
Endangered Species Act. It took hard work, but we just sat 
around, and we just did it.
    I suggest that you might consider the same kind of process 
with respect to TMDL, or ESA, or whatever issues that we have 
to resolve in the remaining months of this year.
    It worked then. It did work with ESA reform. It was passed 
out at committee, if you recall. It went to the floor, and it 
frankly got hung up on the floor by another Senator for reasons 
which I just disagree with.
    Senator Crapo. But it did not work in 6 weeks. That is the 
problem.
    Senator Baucus. Well, I am saying that we sit down, and I 
think there is a good chance that in good faith, with the 
appropriate Senators, we may not get a total solution in 6 
weeks.
    But we will get an approach on how to deal with the 
problem, certainly within 6 weeks, and maybe an agreement about 
what to do with the problem overall, knowing we are not going 
to have a TMDL rule in 6 weeks. That is not going to happen. At 
least, I do not think it is going to happen.
    But I do think it is very likely that in good faith that we 
could come up with an approach to deal with TMDL within 6 
weeks.
    Senator Crapo. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. I think Max is on 
to something. Let me maybe just expand on it, because I was 
going to suggest going at it this way.
    If we did, for example, nothing other than to put our 
staffs, starting today, on essentially the two or three kind of 
key issues, the Baucus staff, the Boxer staff, you two as the 
leadership of the committee, and as you know, I have been 
interested, and would like to participate, and we put our staff 
on what I think are essentially the three sort of key issues.
    The first would be the role of the States. As you know, the 
USDA and EPA put out a program that tried to expand the role of 
the States and the landowners.
    There was a good reaction to that. People said they are 
trying. There are an awful lot of details about what the role 
of the States would be. And our staffs could start working on 
that now. I think this is an area where we could get some 
common ground.
    The second area that our staffs could start working on 
right away, it seems to me, is the flexibility, once you have 
the high environmental standards. We want to make sure we have 
got good environmental standards to deal with non-point 
pollution. The question for the private landowners is the 
flexibility in terms of how you meet those standards. And I 
think our staffs could work on that.
    And the third area for us to begin with the staffs right 
away would be the question of can you streamline the process 
with Clean Water and ESA linked together?
    I would just wrap up by way of saying, if we spend the next 
6 weeks, along the lines of what Max is talking about with the 
staffs and the Senators, I think we would have a pretty good 
shot at finding common ground here.
    And if we cannot, I think it is pretty clear that folks on 
your side of the aisle have the votes to pass pretty much what 
you would like, and so be it. That is the nature of the 
process. But let us at least try for the 6 weeks, to try to get 
this common ground.
    And certainly, those three issues, having been to all of 
your hearings and certainly finding a lot to agree with in what 
you and Bob have said, strike me as the keys. And if my 
colleagues think there are others, so be it. Then let us get 
the staffs to work, and see if we can do it.
    Senator Smith. I think the main difference, and there are 
some agreements, but I think the main difference, as I 
understand it, is that you folks want the rule implemented on 
June 30. You do not want to delay the implementation of the 
rule. And that is a pretty hard bridge to cross.
    That is the main concern, as I understand it. Unless you 
pass legislation such as this or some other legislation that 
prevents that from happening, I do not know how you get 
anywhere. Because once the rule is implemented, then the time 
pressure is off, and it is just going to drift on.
    Senator Baucus. Mr. Chairman, it is my experience that 
there are many ways to skin a cat.
    Senator Smith. If you can catch the cat.
    Senator Baucus. One side says black and the other side says 
white. Generally, there is a grey in there that is agreeable to 
most folks. It may not be everything, but it is agreeable, 
remembering that perfection is the enemy of the good.
    Senator Crapo. Well, as the Senator from Oregon knows, I am 
already working with him, and would be glad to increase our 
efforts to work together to find this common ground and build a 
path forward.
    To me, as the chairman of the full committee has indicated, 
the rub is that if we do not get that path forward identified 
and identify a bipartisan solution that can become enacted into 
law within 6 weeks, then the entire effort is basically moot, 
at least until some action can be done to undo what the EPA is 
proposing to do on June 30.
    And as Senator Smith indicated in his opening statement, 
this is not a course of action that we chose to take. We have 
both asked the EPA, on multiple occasions, to just put back the 
deadline that they have imposed on themselves, and let us try 
to work this forward.
    So regardless of what happens with regard to the EPA's 
decision or the movement of this legislation, I will commit to 
you right now to try to build a common ground.
    Senator Boxer. If I just might say this, and then I am 
going to leave you to the rest of your discussion. As the new 
Ranking Member here, I do believe we can work something out. We 
do not lose anything by trying.
    I think the important thing is to include everyone on the 
subcommittee staff in these discussions. Otherwise, it is not 
going to happen. If it is two of us doing it, it is not going 
to happen.
    And I would just say in closing, I am really sorry that 
this all took this turn. But the bottom line is, they are 
talking about delivering on the promise of the Clean Water Act, 
but also enhancing State flexibility in managing polluted 
waters, and streamlining the regulatory framework.
    So it seems to me, we are all saying the same thing, but we 
may have different ways to get there and have to hammer it out. 
But I have seen this committee in the past really move 
mountains, this full committee, with Senator Baucus' leadership 
and the leadership of Senator Chafee.
    And I know Senator Smith is a good guy to work with. You 
know, we have remained really good friends through all our 
disagreements. And I think it says a lot that we can do that.
    So despite the fact that we have got these problems on the 
floor, maybe we can show that this committee can do something. 
I am going to leave you now.
    Senator Crapo. You have other business, I know.
    Senator Boxer. I hope that we can work together. And my 
staff is ready, willing, and able to work with everyone's 
staff.
    Senator Crapo. Well, let me take the opportunity right now 
to close this hearing so that we do not end up in violation of 
any Senator rule. Although after I do so, I would be glad to 
stay around and visit with any of the Senators who would like 
to do so now or later.
    And to each of the witnesses, I would like to ask you to 
come up afterwards, so that I can personally apologize to you 
for your inconvenience.
    At this time, the hearing is adjourned.
    [Whereupon, at 10:55 a.m., the committee was adjourned.]
    [Additional statements submitted for the record follow:]
    Testimony of J. Charles Fox, Assistant Administrator for Water, 
                    Environmental Protection Agency
                              introduction
    Good morning Mr. Chairman. I am Chuck Fox, Assistant Administrator 
for Water at the Environmental Protection Agency (EPA). I appreciate 
the opportunity to testify before this subcommittee on the work we are 
doing--in cooperation with other Federal agencies, States, and local 
communities--to identify polluted waters around the country and restore 
their health.
    My testimony to your subcommittee in February described in some 
detail the key elements of the Clean Water Act program for restoring 
polluted waters--generally known as the ``Total Maximum Daily Load'' or 
TMDL program. It described the over 20,000 waterbodies identified by 
States as polluted in 1998. It also described our effort, begun almost 
3 years ago, to work with a diverse Federal Advisory Committee to 
review the TMDL program and identify needed improvements in existing 
regulations. And, my earlier testimony described the changes to the 
current TMDL regulations that EPA proposed in August of last year.
    Rather than review these topics again today, I would like to focus 
on work we have done since February with a range of interested parties 
to discuss the important issues raised in the proposed regulations.
    As a result of these discussions, I am confident that we can 
develop a final regulation that addresses many of the suggestions we 
have heard while still providing for a strong, common-sense program--
led by the States and local communities--to identify and restore the 
Nation's polluted waters.
    I will also review some recent developments related to the TMDL 
program. For example, a Federal court in California recently confirmed 
the EPA's long-standing view that the Clean Water Act calls for 
polluted runoff from nonpoint sources to be accounted for in the 
identification of polluted waters and in the development of TMDLs. 
Finally, Mr. Chairman, I will describe the Administration's strong 
opposition to the legislation (S. 2417) you recently introduced with 
Senator Crapo calling for a delay of several years in finalizing 
revisions to the TMDL program regulations.

             CONSULTATION WITH PARTIES INTERESTED IN TMDLS

    Over the past several months, EPA has worked closely with many 
groups and organizations interested in the TMDL program and in the 
proposed revisions to the current TMDL regulations. We have also made a 
special effort to review the many public comments we received on the 
proposed regulations.
Consultation with States
    As I indicated in my testimony in February, the Clean Water Act 
provides that States have the lead in identifying polluted waters and 
developing TMDLs.
    It is critical that States stay in this leadership role and that 
they are partners in developing and implementing the program for 
restoring polluted waters described in our final regulations.
    In developing the proposed revisions to the TMDL regulations, we 
worked closely with State officials, including a group set up by the 
Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA) and the Environmental Council of the States 
(ECOS). In addition, four senior State officials were members of the 
Federal Advisory Committee on the TMDL program.
Consultation with the U.S. Department of Agriculture
    For the past several years, EPA and the United States Department of 
Agriculture (USDA) have worked in close cooperation to design and 
implement programs to protect water quality.
    EPA and USDA worked together in developing the Clean Water Action 
Plan several years ago, developed the EPA/USDA Animal Feeding Operation 
Strategy issued last year, and worked with other agencies to draft the 
Unified Federal Policy for management of water quality on a watershed 
basis proposed earlier this year.
    When the proposed TMDL rule was published last August, concerns 
were raised in comments by the USDA. In response to these concerns, I 
met with Under Secretary for Natural Resources and the Environment, 
James Lyons, and we established a joint EPA/USDA workgroup to review 
concerns of USDA with the TMDL proposal.
    The USDA/EPA workgroup has been meeting on a regular basis over the 
past 3 months and these meetings have involved several dozen staff from 
different parts of both agencies. These intensive discussions have 
helped both agencies think through how our programs can best be 
coordinated.
    EPA and USDA recently released a Joint Statement describing areas 
of agreement on the TMDL rule. Mr. Chairman, I ask that a copy of the 
Joint Statement be included in the record.
    Some of the key elements of this Joint Statement describe changes 
EPA expects to include in the final TMDL rule on topics of interest to 
the USDA. For example, the Joint Statement outlines how EPA and USDA 
propose to address the problem of restoring polluted waters that are 
impaired as a result of forestry operations. The USDA/EPA forestry 
proposal is discussed in more detail later in my testimony.
    In addition, the Joint Statement addresses the treatment of diffuse 
runoff in our August TMDL proposal. EPA remains committed to voluntary 
and financial incentive approaches to reduce runoff from diffuse 
sources of pollution where there is reasonable assurance that these 
controls will be implemented. The proposed rule would not require Clean 
Water Act permits for runoff from these sources.
    The President's fiscal year 2001 Budget backs up this commitment to 
voluntary and incentive-based programs with proposals that State grants 
for polluted runoff programs be increased from $200 to $250 million and 
that funding for conservation assistance programs at the U.S. 
Department of Agriculture be increased by $1.3 billion. The benefits 
that result from these and other assistance programs will be given due 
credit in the TMDL process.
    Since the majority of polluted waters are polluted in whole or in 
part by runoff from diffuse sources, a management framework that does 
not address them cannot succeed in meeting our clean water goals. As I 
discuss in more detail later in this testimony, this view was recently 
endorsed by a Federal court in California.
Review of Comments on the Proposed Regulations
    I want to assure the subcommittee that EPA is fully, and carefully, 
reviewing the public comments on the proposed regulations.
    The Agency received over 34,000 comments on the proposed TMDL 
regulation. The comments fall into three general groups:
     We received some 30,546 postcards addressing control of 
water pollution from forestry operations. Many of these comments are 
virtually identical.
     We received 2,747 comments from diverse individuals and 
organizations expressing a view on one or two elements of the proposal.
     We received 781 comments from groups or individuals 
expressing comments on multiple parts of the proposal.
    The Administrator and I view each and every comment as important. 
In anticipation of extensive comment, EPA began working to organize and 
evaluate comments received even before the close of the comment period. 
Since the comment period closed, we have reassigned staff as needed to 
review and summarize comments.
    This is an important effort begun over 3 years ago with the 
convening of a Federal Advisory Committee. EPA has made every effort to 
assure a full and careful review of public comments. If anything, the 
high level of interest in the regulation has given us an extra measure 
of determination to assure that the final TMDL rule is based on a 
careful consideration of the record.

             EXPECTED CHANGES TO PROPOSED TMDL REGULATIONS

    I want to outline our current thoughts on how to change the 
proposed revisions to the TMDL regulations and proceed with the 
important work of restoring America's polluted waters.
Delivering the Promise of the 1972 Clean Water Act
    The final rule will provide a common-sense, cost-effective 
framework for making decisions on how to restore polluted waters. EPA 
expects that the final rule will:
     Tell the Full Story--provide for a comprehensive listing 
of all the Nation's polluted waters;
     Meet Clean Water Goals--identify pollution reduction 
needed to meet the clean water goals established by States in water 
quality standards;
    --Encourage Cost-Effective Clean-Up--assure that all sources of 
pollution to a waterbody are considered in the development of plans to 
restore the waterbody;
     Rely on Local Communities--foster local level, community 
involvement in making decisions about how best to meet clean water 
goals;
     Foster On-the-Ground Action--call for an implementation 
plan that identifies specific pollution controls for the waterbody that 
will attain clean water goals;
     Commit to Environmental Results--require a ``reasonable 
assurance'' that the needed pollution reductions will be implemented; 
and
     Assure a Strong Program Nationwide--EPA will establish 
lists of polluted waters and TMDLs where a State fails to do so.
Enhancing State Flexibility in Managing Polluted Waters
    States will have the lead to identify and clean up polluted waters 
through the TMDL program. The final regulation will expand the 
flexibility that States have to tailor programs to the specific needs 
and conditions that they face. EPA expects that the final rule will:
     Give States More Time--allow States 4 years to develop 
lists of polluted waters, rather than 2 years as under current 
regulations;
     Give States More Time--allow States to develop TMDLs over 
a period of up to 15 years, rather the 8-13 year timeframe of the 
current program;
     Tailor to Local Conditions--tailor implementation plan 
requirements and add flexibility to account for different types of 
sources causing the water quality problem; and
     Endorse Voluntary Programs--give full credit to voluntary 
or incentive-based programs for reducing polluted runoff through 
diverse control measures, including best management practices (BMPs).
Streamlining the Regulatory Framework
    In response to comments from many interested parties, the final 
rule will be streamlined and focused on what is needed for effective 
TMDL programs. EPA expects that the final rule will:
     Drop Threatened Waters--drop the requirement that polluted 
water lists include ``threatened'' waters expected to become polluted 
in the future;
     Allow More Flexibility in Setting Priorities--drop the 
proposed requirement that States give top priority to addressing 
polluted waters that are a source of drinking water or that support 
endangered species;
     Drop Petition Process--drop the proposal to provide a 
public petition process for review of lists of impaired waters or TMDL 
program implementation;
     Drop Requirements for Offsets of New Pollution--drop 
proposals to require offsets before new pollution can be discharged to 
polluted waters prior to the development of a TMDL; and
     Phase-In Implementation--new requirements for polluted 
waters lists become effective in 2002 and new requirements for TMDLs 
will be phased in over an 18 month period.
USDA/EPA Forestry Approach
    In finding a common view of the best approach to reducing forestry 
impacts on water quality, EPA and USDA agreed that a number of States 
are doing an outstanding job of managing forest operations and 
preventing water pollution. We want to recognize and rely on these 
strong State programs to both prevent water pollution and to fix those 
pollution problems that do occur.
    Not all States, however, currently have strong forest management 
programs. Many of these States are working hard to upgrade programs 
over the next several years. These efforts need to be encouraged and 
supported.
    Finally, some State forestry programs may not be adequate to 
prevent water pollution problems for the foreseeable future. In 
situations where States choose not to develop approvable programs 
within 5 years, EPA and USDA recognize the need to have a ``safety 
net'' for water quality. The safety net that we envision is to empower 
State environmental agencies to issue Clean Water Act permits for 
discharges of stormwater from forestry operations, in very limited 
circumstances.
    Let me be clear that, under our approach, no Clean Water Act 
permits would be issued for at least 5 years from the date of the final 
TMDL rule. And, no permits would be issued in States that now have, or 
that develop, adequate forest water quality programs. The final rule 
will describe basic criteria of adequate programs, including 
appropriate best management practices identified in consultation with 
USDA.
    Where a State has not developed a strong forest water quality 
program after 5 years, forestry operations might be asked to have a 
permit, but only if:
     the forestry operation resulted in a ``discharge'' from a 
point source (diffuse runoff from a silviculture operation will not be 
subject to a permit under any circumstances);
     the operation contributes to a violation of a State water 
quality standard or is a significant contributor of pollutants to 
waters; and
     the State Clean Water Act permit authority determined that 
a permit, as opposed to a voluntary or incentive-based program, was 
needed to assure that pollution controls would be implemented.
    EPA may also designate forestry operations as needing a permit, but 
our ability to do so is even more limited than that of the State. In 
addition to meeting the conditions mentioned above, the EPA would need 
to be establishing a TOOL where a State did not do so. EPA agrees that, 
where a State finds that a permit is needed, best management practices, 
rather than numeric effluent limits, are appropriate as permit 
conditions.
    In addition, because States have the discretion to issue permits, 
forest operators that have not been told by the permit authority that 
they need a permit will not be subject to government or citizen 
enforcement for failure to have a permit.

            IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

    I want to briefly review some recent, important developments 
related to the TMDL program.
Reducing Workload and Assuring Adequate Resources
    State officials have expressed concern over the workload and costs 
of the TMDL program. EPA is making every effort to respond to this 
concern. Last month, EPA issued a regulation eliminating the 
requirement that States submit lists of polluted waters this year; new 
lists will not be due until 2002. The decision to eliminate the 2000 
listing process has saved States and others hours of work and has 
allowed us all to concentrate on the important job of developing TMDLs 
for the over 20,000 waterbodies already identified as polluted.
    States are also concerned about the costs of administering the TMDL 
program. The annual appropriation available to States to administer and 
directly implement TMDLs and the clean water program has steadily 
increased from $131 million in 1993 to a proposed $410 million in the 
Administration's proposed 2001 budget.
    The President's fiscal year 2001 Budget increases State grant 
funding for TMDLs by $45 million in fiscal year 2001 alone. When States 
match this new funding, about $70 million in new funding will be 
available for implementing the TMDL program.
    In addition, EPA has provided States with the discretion to use up 
to 20 percent of funding under section 319 to develop TMDLs and for 
related work. The President's request for 319 funding in fiscal year 
2001 is $250 million and thus provides up to $50 million in additional 
TMDL funding.
    And, EPA expects that the final rule will support more cost-
effective development of TMDLs by specifically encouraging States to 
develop TMDLs for groups of polluted waterbodies on a watershed scale.
    EPA has worked with States to develop detailed assessments of the 
costs of key elements of the clean water program. Based on this 
analysis, and in consultation with the Ounce of Management and Budget, 
EPA projects that the funding proposed in the President's budget would 
be sufficient for States to administer the TMDL program in 2001 under 
the final TMDL regulations expected to be promulgated this summer.
Garcia River Decision
    A Federal court in California, reviewing a challenge to a TMDL 
developed for the Garcia River, concluded last month that the Clean 
Water Act authorizes EPA to establish TMDLs for waters ``polluted only 
by logging and agricultural runoff and/or other nonpoint sources rather 
than by any municipal sewer and/or industrial point sources.''
    The court noted that the Supreme Court has consistently referred to 
the Clean Water Act as establishing a ``comprehensive and all-
compassing'' program of water pollution regulation. The court found 
that the logic of section 303(d) required that listing and TMDLs were 
required for all impaired waters, and concluded that excluding nonpoint 
source impaired waters would have left a ``chasm'' in the statute. And, 
the judge found that Congress' passage of section 319 in 1987 was 
consistent with the view that section 303(d) covered nonpoint sources 
of pollution because TMDLs were needed for the planning required under 
Section 319.
    This decision confirms EPA's long-standing interpretation of the 
Act. It also makes clear that the requirement to list waters polluted 
by diffuse or nonpoint sources, and develop TMDLs for these waters, is 
based on the Clean Water Act rather than the existing or proposed TMDL 
regulation.
GAO Report on Water Quality Monitoring
    Also in March, the General Accounting Office released a report 
critical of data used by States and EPA to make water quality 
decisions.
    EPA has responded to the report in detail, agreeing with some 
conclusions and disagreeing with others.
    EPA agrees with the GAO conclusion that some States lack the data 
that they need to fully assess the water pollution problems in their 
State. In many States, the lack of an extensive, and expensive, 
monitoring network prevents the State from evaluating all waters on a 
regular basis. Given limited resources, however, knowledgeable State 
managers focus monitoring resources on the most likely problem areas. 
The GAO report recognizes this approach and reports ``State officials 
we interviewed said they feel confident that they have identified most 
of their serious water quality problems.''
    The GAO report suggests that the polluted waters identified from 
this monitoring may not be all of the polluted waters in the State. It 
does not indicate that the polluted waters that are identified as 
polluted are improperly identified as polluted. In other words, the 
TMDL program may not be focused on enough waters, but it is not focused 
on the wrong waters. In addition, if a waterbody is listed as polluted 
by mistake, it can be removed from the list.
    Some observers have incorrectly concluded that the report found 
that States do not have the data that they need to develop TMDLs. There 
are several problems with this conclusion.
    First, GAO generally found that States do have the data they need 
to develop TMDLs for point sources.
    Second, while most States now lack detailed data to develop a TMDL 
for waters polluted by nonpoint sources, the development of these site-
specific data has not been a priority of State monitoring programs. EPA 
and States recognize and expect that, once the process of developing a 
TMDL is begun, sometimes, several years later, States will need to 
supplement the initial screening data used to identify the problem with 
more detailed assessments needed to develop a TMDL. The lack of these 
data today is not a reason to delay a TMDL.
    Third, GAO concludes that the lack of detailed nonpoint source 
related data makes it ``difficult to directly measure pollutant 
contributions from individual nonpoint sources and, therefore, assign 
specific loadings to sources in order to develop TMDLs.'' This would be 
a concern if EPA's existing or proposed TOOL regulations required that 
States have data to assign specific loadings to individual sources, but 
they do not. Rather, EPA's proposed regulation specifically provided 
that allocations to nonpoint sources may include ``gross allotments'' 
to ``categories or subcategories of sources'' where more detailed 
allocations are not possible.
Atlas of America's Polluted Waters
    States submitted lists of polluted waters in 1998. Over 20,000 
waterbodies across the country are identified as not meeting water 
quality standards. These waterbodies include over 300,000 river and 
shore miles and 5 million lake acres. The overwhelming majority of 
Americans--218 million--live within 10 miles of a polluted waterbody.
    A key feature of the 1998 lists of polluted waters is that, for the 
first time, all States provided computer-based ``geo-referencing'' data 
that allow consistent mapping of these polluted waters. In order to 
better illustrate the extent and seriousness of water pollution 
problems around the country, EPA prepared, in April of this year, an 
atlas of State maps that identify the polluted waters in each State. 
The maps are color coded to indicate the type of pollutant causing the 
pollution problem. And, bar charts show the types of pollutants 
impairing stream/river/coastal miles and lake/ estuary/ wetland acres.
    Mr. Chairman, I ask that a copy of the Atlas of America's Polluted 
Waters be included in the hearing record.
Economic Analysis
    Several Members of Congress have suggested that EPA did not conduct 
an adequate assessment of the cost of the TMDL regulation. As you know, 
Mr. Chairman, cost assessments of proposed regulations are strictly 
governed by statute and by Executive Order.
    In compliance with these requirements, EPA described the 
incremental costs of the proposed regulation. We did this work 
carefully and fully, in compliance with applicable guidelines. EPA is 
working with States and others to define the overall costs of 
administering the TMDL program, including both the base program costs 
and the incremental costs of the new regulations. EPA is committed to 
providing an estimate of these costs prior to promulgation of the final 
TMDL regulations.
    Many commenters on the proposed revisions to the TMDL regulations 
indicated an interest in EPA's estimate of the overall costs of 
implementing the TMDL program and restoring the Nation's polluted 
waters.
    It is important to note that several provisions of the Clean Water 
Act call for attainment of water quality standards adopted by States. 
Notably section 301 
(b)(1)(C) of the Act requires that all discharge permits include limits 
as necessary to meet water quality standards. The TMDL process does not 
drive the commitment to meet water quality standards. Rather, it 
provides a comprehensive framework for identifying problem areas and 
allocating pollution reductions necessary to fix problem among a wider 
range of pollution sources (i.e. not just point sources).
    EPA recognizes that the TMDL process imposes some administrative 
costs for States, communities and pollution sources. We believe, 
however, that these administrative costs could be largely offset by the 
significant savings to be achieved over the next decade as a result of 
the TMDL process. By bringing all sources of pollution in a watershed 
together, the local community and the State can work together to 
evaluate various approaches to achieving needed pollution reductions. 
For example, the cost to remove a pound of a given pollutant may be 
high for some sources and low for others.
    The TMDL process lays out these considerations and lets the local 
community decide how to meet its clean water goals. EPA expects many 
communities to opt for cost-effective approaches, many of which rely on 
low cost controls over nonpoint sources.
    Under the final revisions to the TMDL rules to be published this 
summer, opportunities for shifting pollution control responsibility 
from high cost point source controls to lower cost controls over 
nonpoint sources will be greatly enhanced. Under the new rules, States 
and EPA will be able to defend point source permits that alone will not 
result in attainment of water quality standards because the TMDL must 
provide a ``reasonable assurance'' of implementation of other needed 
pollution reductions.
    Under the TMDL rules in effect today, ``reasonable assurance'' is 
not a necessary element of a TMDL and cost effective sharing of 
pollution reductions is much less likely. As I have testified, 
``reasonable assurance'' of implementation can be established based on 
voluntary and incentive-based programs.
    EPA is developing rough estimates of the costs of attaining clean 
water goals using the TMDL model and not using the TMDL model (i.e. 
relying on point source controls only to meet water quality standards) 
and will make this estimate available in conjunction with promulgation 
of the TMDL regulation.
                         opposition to s. 2417
    Mr. Chairman, the legislation you introduced with Senator Crapo, S. 
2417, includes some important provisions expanding authorizations for 
State clean water grants. But the Administration must strongly oppose 
the bill because it would delay final TMDL regulations by at least 3 
years, and perhaps much longer.
    The bill would expand authorizations for several key State grant 
programs, including the clean water program management grants under 
section 106 of the Clean Water Act and the nonpoint pollution control 
grants under section 319 of the Act. The Administration believes that 
adequate State grant funding for clean water programs is critical to 
effective operation of the Nation's clean water program. We have 
proposed an increase of $150 million over the past 2 years in funding 
for State nonpoint control programs and an increase of $45 million in 
fiscal year 2001 for State water program grants. However, the 
Congressional Budget Resolution limits domestic discretionary spending 
such that it will be very difficult to meet the Administrations's 
proposed increases. Given the Congressional Budget Resolution, the 
funding levels proposed in the bill are unrealistic. One of the 
unintended consequences could be to divert funding from other valuable 
water quality efforts. The Administration stands ready to work with 
Congress to achieve our ambitious goals of substantially increased 
funding for important water quality work.
    The bill would increase the section 106 grant authorization to $250 
million with $50 million of this amount reserved for implementation of 
TMDLs. The President's fiscal year 2001 budget provides an increase of 
$45 million in the section 106 grant that is reserved for TMDL 
development with an appropriate State match. This $45 million increase 
would bring the total amount of the section 106 grant to $160.5 million 
in fiscal year 2001.
    The bill would authorize $500 million for the section 319 grant 
program, which is double the President's fiscal year 2001 request. Some 
$200 million of this amount would be reserved for grants to implement 
nonpoint pollution control projects. Further, the bill would 
significantly lower the current non-Federal matching requirement. The 
Administration recommends maintaining the current non-Federal match, 
which is a more appropriate rate of 60 percent Federal funds with the 
remaining project costs provided by non-Federal funds. For any given 
level of available Federal funding, the bill's proposal of a 90 percent 
Federal matching requirement would result in fewer projects funded, and 
fewer areas and people being served.
    Provisions of S. 2147 call for a study of the scientific basis for 
the TMDL program. While there are technical issues associated with the 
development of TMDLs, many of the essential scientific bases for 
developing TMDLs and restoring polluted waters are already available. 
There is no need for a review of this science by the National Academy 
of Sciences. In addition, other objectives of the study, such as 
assessments of total costs of meeting water quality standards, are 
questions that the National Academy of Sciences is not best suited to 
answer.
    Section 5 of the bill provides for the funding of five watershed 
management pilot projects. States and EPA already have extensive 
experience in the development and implementation of watershed 
management projects at several geographic scales. For example, the 
National Estuary Program has invested tens of millions of dollars in 
watershed management projects on over 28 estuaries around the country. 
Numerous other watershed management projects have been completed or are 
underway. It would be a mistake to divert $2 million to these five 
projects when this funding is badly needed to support broader State 
efforts to develop TMDLs.
    Finally, section 6 of S. 2147 would prevent the finalization of 
TMDL regulations until the completion of the study by the National 
Academy of Sciences. The Administration is strongly opposed to this 
provision of the bill.
    Enactment of this proposal could result in the effective shut-down 
of the TMDL program in many States as they and other parties defer work 
on TMDLs until the comprehensive studies mandated by Congress are 
completed. Sadly, Congress would be telling thousands of communities 
across the country that are eager to get to work restoring the over 
20,000 polluted waters to stand down--to pack up their clean water 
plans and put them into the deep-freeze for the foreseeable future 
while a panel of scientists meets here in Washington, behind closed 
doors, for almost 2 years, to write a report.
    Many States have strong public confidence in their TMDL programs 
and expect to work cooperatively with the public in listing polluted 
waters and developing TMDLs. State efforts to meet commitments to the 
public to run effective TMDL programs would be hampered because many 
affected pollution sources could cite the Congressionally mandated 
national study as a reason to delay any action on TMDLs before release 
of the study and subsequent revision of the rules. Public confidence in 
the TMDL process could be seriously eroded.
    Citizens may step-up efforts to seek court orders to complete lists 
of polluted waters and TMDLs. Without final regulations to guide EPA 
and State efforts to implement the TMDL program, courts could issue 
detailed judicial guidance for the TMDL program.
    I hope, Mr. Chairman, that I can convince you and other Members of 
Congress that we do not need to postpone any longer these important 
improvements to the TMDL program. We have a solid legislative 
foundation in the Clean Water Act. We have a good TMDL program that 
will be even better with the revisions to the program regulations that 
we will finalize this summer. Most importantly, people all over the 
country want to get to work restoring polluted rivers, lakes, and 
coastal waters, and they want to start now.

                               CONCLUSION

    The 1972 Clean Water Act set the ambitious--some thought 
impossible--national goal of ``fishable and swimmable'' waters for all 
Americans. At the turn of the new millennium, we are closer than ever 
to that goal. Today, we are able to list, and put on a map, each of the 
20,000 polluted waters in the country. And, we have a process in place 
to define the specific steps to restore the health of these polluted 
waters and to meet our clean water goals within the foreseeable future.
    It is critical that we, as a Nation, rededicate ourselves to 
attaining the Clean Water Act goals that have inspired us for the past 
25 years. The final revisions to the TMDL regulations will draw on the 
core authorities of the Clean Water Act, and refine and strengthen the 
existing program for identifying and restoring polluted waters.
    Mr. Chairman, I consistently hear from critics of the TMDL program 
that it is more of the old, top-down, command-and-control, one-size-
fits-all approach to environmental protection. In fact, the TMDL 
program offers a vision of a dramatically new approach to clean water 
programs.
    This new approach focuses attention on pollution sources in proven 
problem areas, rather than all sources. It is managed by the States 
rather than EPA. It is designed to attain the water quality goals that 
the States set, and to use measures that are tailored to fit each 
specific waterbody, rather than imposing a nationally applicable 
requirement. And, it identifies needed pollution reductions based on 
input from the grassroots, waterbody level, rather than with a single, 
national, regulatory answer. In sum, we think we are on the right track 
to restoring the Nation's polluted waters.
    The final revisions to the existing TMDL regulations will support 
and improve the existing TOOL program and they will be responsive to 
many of the comments we have heard from interested parties.
    Thank you, for this opportunity to testify on EPA's efforts, in 
cooperation with States and other Federal agencies such as the 
Department of Agriculture, to restore the Nation's polluted waters. I 
will be happy to answer any questions.
                               __________

    STATEMENT OF JIM LYONS, UNDER SECRETARY, NATURAL RESOURCES AND 
                 ENVIRONMENT, DEPARTMENT OF AGRICULTURE

    Mr. Chairman and members of the committee, thank you for inviting 
me to appear before you today to join my colleague Chuck Fox, Assistant 
Administrator of the Environmental Protection Agency (EPA), to discuss 
EPA's proposed rules on Total Maximum Daily Loads (TMDL).
    USDA shares this committee's commitment to cleaning the waters of 
the United States and building on successes reducing water pollution 
over the past several decades. To some degree, those accomplishments 
were the easy part. The remaining pollution concerns, as highlighted in 
the President's Clean Water Action Plan which EPA and USDA helped 
prepare, are nonpoint sources of pollution such as soil erosion, urban 
runoff, pollutants from animal feeding operations and other sources 
that do not come from the end of a pipe. Addressing these nonpoint 
sources is the great challenge that remains to further improve our 
waters to make them fishable and swimmable for all Americans to enjoy.
    To accomplish these next steps in cleaning our waters will take a 
concerted effort from farmers, ranchers, and forest landowners, as well 
as urban and suburban residents. Notwithstanding the work that remains, 
farmers, ranchers, and foresters have been working for years to reduce 
the effects of their operations on water quality. Much has been 
achieved in this regard using many of the conservation tools that the 
Congress and Department wrote into the 1985, 1990, and 1996 Farm Bills.
    For example, the Conservation Reserve Program (CRP) has been an 
extremely effective tool in reducing erosion on highly erodible lands. 
Continuous sign-up of buffer practices under CRP has become an 
important part of water quality protection. The Wetlands Reserve 
Program and the Environmental Quality Incentives Program (EQIP) have 
benefited thousands of farmers and ranchers and helped them improve the 
productivity of their operations through improved conservation. The 
Conservation Reserve Enhancement Program (CREP) is playing an important 
role in protecting the waters of the Chesapeake Bay, salmon habitat in 
Oregon and Washington, and drinking water supplies for New York City. 
The President's fiscal year 2001 budget request includes $1.3 billion 
above currently authorized levels to bolster our agriculture 
conservation programs.
    I am proud of agriculture's and forestry's contributions to the 
nation's efforts to clean our waters, while recognizing that we can and 
should do more. As Secretary of Agriculture Dan Glickman noted before a 
Senate Committee in February it is not a matter of whether farmers 
should do more, but ``how to proceed with our efforts to reduce 
nonpoint sources of pollution.''
    It is no secret that USDA's relationship with EPA got off to a 
rocky start last fall when my office filed comments highly critical of 
their proposed rules. However, as I have pointed out before, these 
comments were not cleared through the Office of the Secretary and do 
not represent USDA's official position. Having said this, many of those 
concerns had validity and we realized to obtain the best rule possible, 
we needed to be part of EPA's efforts in refining their initial 
proposal. So in January Assistant Administrator Fox and I established 
an interagency workgroup of our senior staff to review key issues. That 
group worked through the winter and came to the agreement that has been 
outlined by Mr. Fox on the issues of interest to USDA. As you have 
heard, EPA has agreed to reflect these agreements in its final TMDL 
rule.
    I want to briefly highlight the aspects of our agreement pertinent 
to agriculture and forestry. Both agencies decided that giving local 
citizens and State governments the most say in how pollution budgets 
are established for impaired waterways would have the greatest measure 
of success. The agreement grants States more flexibility in setting 
priorities, more time to develop lists of impaired waters, and 
simplifies listing requirements, dropping a requirement that 
``threatened waters'' be listed. States will have 15 years to develop 
TMDLs for their impaired waters and the final regulation will not set a 
time limit for attainment of Water Quality Standards.
    Most importantly from the standpoint of agriculture, EPA and USDA 
agree that voluntary and incentive-based approaches, such as the water 
quality improvements that farmers make through Federal conservation 
programs or on their own initiative, will be given due credit in the 
development of TMDLs.
    Much of our concern was related to the regulation of pollution from 
forest operations--harvesting, road building and other activities. 
Under the revised regulation no NPDES permits will be required for 5 
years from publication of the final rule. After that period States are 
given choices in determining the degree of Federal regulation that will 
apply. Forest operations in States that develop adequate forest water 
quality programs based on EPA-approved BMPs will never be subject to 
NPDES permits. EPA will consult the USDA in determining the standards 
for approving BMPs. Operations on National Forest System lands, where 
operators already follow regulations that require consistency with 
State water requirements, will be exempt from NPDES permit 
requirements.
    We were concerned whether operators who are implementing those BMPs 
required by a State would be subject to penalty for failing to meet 
water quality standards. I learned that the EPA cannot legally mandate 
States to adopt these requirements, but as an incentive to good faith 
compliance with forestry BMPs, the EPA will encourage State programs to 
include a good faith exemption from any directly enforceable State 
water quality standard. If a State fails to gain approval for their 
forestry BMP program after 5 years, the State or EPA will have the 
authority to designate discharges of significant stormwater pollution 
as needing a NPDES permit. Any NPDES permits that are issued by EPA 
will include BMPs, as opposed to numerical effluent limitations. EPA 
expects that States will follow this practice. Finally, dischargers 
that are allowed to operate without a NPDES permit will not be exposed 
to citizen suits for failure to have a permit. This is a brief summary 
of our silviculture proposal, I would be happy to answer any detailed 
questions you may have.
    Adequate funding of the programs that will help landowners address 
TMDLs is key to their success. The EPA is currently developing 
estimates of the overall cost of the TMDL program and the analysis will 
be available when the final rule is published. USDA agricultural 
conservation programs are dramatically enhanced by the Farm Safety Net 
proposal in the fiscal year 2001 budget. The Environmental Quality 
Incentives Program (EQIP) would be increased from $200 million to $325 
million. The Conservation Reserve Program (CRP) would be expanded to 40 
million acres. Under our current authority, we are increasing CRP 
continuous sign up incentives by $100 million in fiscal year 2000 and 
$125 million in each of fiscal years 2001 and 2002. The Wetlands 
Reserve Program (WRP), which will reach its statutory 975,000 acre 
cumulative cap in fiscal year 2001, will enroll 250,000 acres annually. 
Finally, under the President's budget, a new $600 million Conservation 
Security Program would be funded and will provide annual payments to 
farmers and ranchers who voluntarily implement various conservation 
practices, many of which will benefit water quality.
    However, in both House and Senate appropriation bills, a provision 
has been inserted limiting fiscal year 2001 EQIP funding to $174 
million, $151 million less than the President's Budget and $26 million 
below its authorized level. Congress also has not authorized additional 
funding for WRP, CRP, or the new Conservation Security Program, as 
requested by the President. I strongly urge Congress to drop the 
objectionable EQIP provision and fully fund these important programs 
that can provide State and local partners the tools to successfully 
build their TMDL programs.
    USDA believes education and outreach to the affected communities 
will play decisive roles in these efforts to improve water quality. We 
and the EPA believe the final TMDL rules must be fair, clear, and 
provide farmers with greater certainty. With this in mind, we are 
working diligently with the EPA to achieve these goals.
    Mr. Chairman, I thank you for this opportunity to appear before 
your committee. We welcome the opportunity to discuss the issues and 
respond to your questions.
                               __________

 TESTIMONY OF JIM GEISINGER, PRESIDENT, NORTHWEST FORESTRY ASSOCIATIONS

                              INTRODUCTION

    Mr. Chairman, members of the committee, my name is Jim Geisinger 
and I am the President of the Northwest Forestry Association. I 
appreciate the opportunity to present my testimony today on behalf of 
the entire forestry community. My focus will be on Senate bill S. 2417 
and the forestry-related components of the Environmental Protection 
Agency's (EPA) August 23 proposed regulations to revise the Total 
Maximum Daily Load (TMDL) program under Section 303(d) and 
modifications to the National Pollutant Discharge Elimination System 
(NPDES) permit program under Section 402 of the Clean Water Act. Let me 
state up front to the subcommittee. The forestry community strongly 
supports S. 2417. It will provide the needed time and scientific 
investigation required to make sense of a total maximum daily load 
program that is projected to cost States over $1 billion to implement.
    There has been much confusion regarding the forestry-related 
aspects of this rule. The EPA wants to make the American public believe 
that forestry is a significant contributor of pollution to waters of 
the United States. I am here today Mr. Chairman to tell you that forest 
management is the best land use of any to protect water quality and the 
practice of forestry provides an economic incentive to maintain lands 
in forest cover. The facts are undeniable and yet we are hearing 
statements from an Agency that cites inaccurate information and out-
dated data. I'll share that with you in a moment but first I want to 
talk to you about the ``Revised Approach'' published by the U.S. 
Department of Agriculture and Environmental Protection Agency in a 
joint statement on May 1, 2000.
    While we have numerous concerns with the proposed regulations, our 
paramount concern remains EPA's attempt to re-classify forestry 
activities as a point source. subject to EPA permitting. In their May 1 
revisions, the EPA has done nothing to change that--only to attempt to 
confuse their true intent and saddle over nine million private 
landowners with unprecedented Federal bureaucracy. Sometimes, the 
forestry community has separate voices on issues of Federal policy. 
Today, I can tell you, the entire forestry community is one hundred 
percent united against this designation and the May 1 USDA/EPA forestry 
revisions. Whether its private landowners, those who access public 
lands, easterners or westerners believe this rulemaking is an assault 
on the practice of forestry in the United States. In fact Mr. Chairman, 
the Governors of Oregon and New Hampshire submitted letters after the 
to the EPA Administrator after the May 1 ``revised approach'' opposed 
to the forestry re-designation.
    The May 1 ``revised approach'' actually expands the proposed rule, 
rather than improves it. And the so-called revision continues to 
include one of the most overreaching parts of the proposal--the effort 
by EPA, contrary to historic Congressional intent, to label all 
forestry activities as a point source discharge subject to permit 
requirements. In addition, EPA and USDA now claim authority to review 
every State's forest management program under the TMDL program, and 
even claim additional authority to approve the TMDL program based on 
undefined criteria that won't be developed until after the rule is 
finalized. This is more expansive than even the original proposed 
rulemaking, and it is not supported by those at the State level who 
must actually administer these programs.
    For the first time in the history of the Clean Water Act, the 
Federal Government is claiming the authority to dictate how private 
forestry practices should be conducted in the United States.
    The May 1st EPA/USDA revised approach did not take into account the 
concerns of industrial or non-industrial forest landowners and the 
agencies did not share it with affected stakeholders until after it was 
sent to Congress. Moreover, the revision contains an exemption from 
permitting requirements for the federally owned U.S. Forest Service 
lands, yet imposes this requirement on private forest lands. The U.S. 
Department of Agriculture cut a deal to exempt their own land when the 
same exact Federal water laws apply to private lands. Is this the way 
Federal environmental policy should be developed? If the Federal 
Government needs to exempt Federal forestlands from this rulemaking, 
then private landowners should be exempt as well. I ask to submit for 
the record a more detailed response to EPA's May 1st announcement.
    This proposed rule could well require a private forest landowner to 
obtain for the first time a Federal permit to work his or her forest. 
According to EPA, this includes nursery operations, site preparation, 
reforestation, cultural treatment, thinning, prescribed burning, pest 
and fire control, and general harvesting operations to name a few. 
These permits can take over 6 months to obtain and at significant 
expense to the landowner. To put it simply, we shouldn't have to get a 
Federal permit to plant a tree.
    We believe Congress must act to reassert the Congressional intent 
of the Clean Water Act. We support legislative action, including S. 
2417 introduced by Senator Mike Crapo and Bob Smith. The legislation 
would restore sound science and basic environmental research into a 
program that is growing out of control and lacks the high quality 
monitoring data that are needed to determine pollutant allocations in a 
watershed. Through the combination of a National Academy of Sciences 
study, pilot projects and increased funding, the nation's waterbodies 
will be restored more cost-effectively, efficiently and benefits truly 
realized.
    We also support legislation authored by Senate Blanche Lincoln (S. 
2041) and Senator Tim Hutchinson (S. 2139) to maintain the 
responsibility for administration of sustainable forestry on private 
lands where it belongs--on the ground at the State level.
    Before I close Mr. Chairman, I want to return to a subject I 
mentioned earlier--the quality of the data. The EPA Assistant 
Administrator for Water sent a letter to the House Agriculture 
Committee claiming that 25 States reported 727 silviculturally impaired 
waterbodies. There are several organizations involved in evaluating 
this list including State agencies. Very briefly, I would like to share 
with you the ``good science'' presented by the EPA in that March 7, 
2000 letter to Chairman Goodlatte in the House Agriculture 
Subcommittee. The Florida Agriculture Commissioner responded to EPA's 
allegations in an April 10th letter. It states, the Section 319 
Assessment was largely a qualitative survey, in which ``water quality 
impairments'' were typically reported without supporting data, or any 
other means of field verification. Further, the Assessment did not 
engage in nor provide any cause-and-effect analysis to determine or 
verify any source(s) of nonpoint pollution. It goes on to state: ``No 
doubt, the qualitative and nonscientific nature of the Assessment, 
accounts for the ``silvicultural impairment'' of waterbodies such as 
the Everglades, Sarasota Bay and the Myakka River, where silviculture 
is virtually non-existent. A 25-State report will be forthcoming on 
these alleged impairments. Preliminary contacts with State forestry and 
water quality agencies indicate that this same ``good science'' was 
applied.
    Mr. Chairman and members of the committee, thank you for the 
opportunity to speak on behalf of the forestry community. I'd like to 
close with one last comment. The EPA indicates that this rule ``only 
generated'' a little over 30,000 comments as compared to a wetlands 
proposal that generated over 100,000 comments. I can guarantee the U.S. 
Congress that if EPA extended the comment period on this rulemaking and 
was looking for real input, they would receive over 1 million comments. 
I'd be happy to answer any questions you might have.

                                 ______
                                 
                                           State of Oregon,
                                            Salem, OR, May 8, 2000.
Hon. Carol Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
    Dear Ms. Browner: The State of Oregon support the EPA's proposed 
TMDL regulations but we do not supports redesignating Oregon's 
silviculture activities from nonpoint to point source status. We 
appreciate and support the Agency's proposed positive response to other 
issues we raised with regard to the TMDL portion of the regulations, 
but we are very concerned that EPA's proposed approach on silviculture, 
as outlined in the May 1st, 2000, Joint Agreement by EPA and USDA, will 
delay adoption of the regulations as a whole.
    The proposed EPA/USDA agreement lacks specific, predictable 
criteria for EPA to judge State forest practices and thus would lead to 
major opposition and delay in TMDL rule adoption. It is premature and 
incomplete. Oregon has a Forest Practice Act, backed by a strong 
monitoring element, that provides for statewide management practices, 
which can be intensified under individual TMDL's.
    In summary, Oregon opposes adoption of the silvicultural provisions 
of the regulations. We also believe that Section 3 of the Joint 
Agreement between EPA and USDA is an inappropriate way to address 
silviculture activities. In order to not jeopardize adoption of the 
TMDL regulations as a whole, we recommend that EPA remove the 
silviculture provisions from this rulemaking, and take those provisions 
through full public comment and debate as occurred with the remainder 
of the regulations.
            Sincerely,
                                    John A. Kitzhaber, M.D.
                                 ______
                                 
                                    State of New Hampshire,
                                          Concord, NJ, May 5, 2000.
Hon. Bob Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC.
    Dear Chairman Smith: Thank you and the members of the Committee on 
Environment and Public Works for taking the time to conduct a hearing 
in Whitefield, New Hampshire on the proposed Total Maximum Daily Load 
(TMDL) rule and the National Pollution Discharge Elimination System 
(NPDES) permit process. I appreciate the opportunity that you have 
provided to New Hampshire residents to present their concerns on the 
TMDL rule to both the committee members and EPA officials.
    As Governor, I have been a strong advocate for both the forest 
products industry, which has expressed significant concerns with the 
proposed TMDL rule, and the environment. We must continue to strike the 
right balance for New Hampshire between the needs of this important 
traditional industry and environmental protection if we are to maintain 
our strong economy and quality of life.
    The original proposed TMDL regulations were highly criticized by 
the New Hampshire Department of Environmental Services, the New 
Hampshire Department of Resources and Economic Developmental, and New 
Hampshire businesses. The proposed regulations were too burdensome on 
both DES and the regulated community, particularly the forest products 
industry. The proposed rules were also too prescriptive, removing the 
flexibility of States to tailor programs to State-specific priorities 
and needs.
    New Hampshire has been successful in developing partnerships 
between State government and business that improve both the economy and 
the environment. It is critical that Federal regulations provide us the 
flexibility to develop innovative solutions and programs that are 
tailored to meet the needs of New Hampshire.
    Forestry is a critical component of New Hampshire's heritage, and 
our economy, especially in the North County. Our long history of forest 
stewardship is reflected in the many tree farms that are found across 
New Hampshire. We must maintain this working landscape by supporting 
working forests, not discouraging them. New Hampshire already has 
programs in place to prevent and resolve environmental problems 
potentially caused by forestry operations. This program includes three 
critical elements:
     Implementation of best management practices. It is 
important to note that a best management practices manual for timber 
harvesting operations was published in February 2000 by the Division of 
Forests and Lands of the New Hampshire Department of Resources and 
Economic Development (DRED), in cooperation with DES, the University of 
New Hampshire, Federal agencies including USDA and EPA, and the New 
Hampshire Timberland Owners Association.
     Training and outreach through partnerships of State and 
Federal agencies and nonprofit organizations including the New 
Hampshire Timberland Owners Association and the Society for the 
Protection of New Hampshire Forests.
     Technical Assistance, compliance and enforcement by DES 
and DRED.
    Under any reasonable criteria, our existing programs are effective. 
There should never be a need for Federal NPDES permits for forestry 
operations not already covered by existing requirements because these 
problems will be addressed at the State level.
    EPA has recently proposed, in conceptual form, a number of changes 
in the proposed rule, which move in the right direction. Chuck Fox, the 
Assistant Administrator for Water, should be commended for his efforts 
to be responsive to public comments. However, the many who have shown 
such deep concern and who would be affected by these new rules deserve 
the opportunity to review and evaluate the details of EPA's proposed 
changes. I urge EPA to publish the actual language of proposed changes 
for forestry for public review as soon as possible to allow evaluation 
and comment on the changes by all interested parties prior to final 
promulgation. This is only appropriate considering the magnitude of the 
comments received about the TMDL rules as originally proposed, and the 
significance of expected changes.
    As in most other States, New Hampshire's TMDL program is 
significantly underfunded. Additional Federal funding to support State 
development to TMDL's is needed, regardless of the results of the EPA 
rulemaking. The President's budget contains $45 million for Federal 
fiscal year 2001, which translates into just over $200,000 for New 
Hampshire to assist with TMDL development. This is a good start, but is 
not adequate to sustain New Hampshire's TMDL program. I request that 
you consider adding at least another $5 million to the President's 
budget proposal. At the $50 million level, small States like New 
Hampshire will receive a 50 percent increase in section 106 funding, 
equivalent to what large States are already receiving at the $45 
million funding level under EPA's new formula for distribution of 
section 106 funds.
    The President's proposed budget also includes rigid conditions for 
the State match for the ``new'' Section 106 moneys which New Hampshire 
and many other small States will not be able to meet. Consequently, I 
would also request that you change these provisions and ensure that any 
additional finding for the TMDL program includes maximum flexibility 
for matching these Federal funds. This is the only way to ensure that 
the Federal funds allocated for New Hampshire will be fully utilized to 
make significant progress toward the goals of the Clean Water Act.
    I look forward to working with you to ensure that New Hampshire's 
waters are protected and improved while ensuring that our forest 
products industry and other traditional activities can continue to 
flourish.
            Very truly yours,
                                            Jeanne Shaheen.

                               __________

   Responses by AF&PA to Questions by Department of Agriculture and 
                    Environmental Protection Agency

    Question 1. Is the USDA/EPA policy consistent with almost 30 years 
of Clean Water Act statutory interpretation, Federal regulation and 
court decisions that forest management activities are a ``nonpoint'' 
source category subject to State regulation under Section 208 and 319 
of the Act?
    Answer. No. Nowhere in the policy statement does EPA/USDA even 
mention that they intend to do exactly what EPA originally proposed in 
August 1999. The EPA will remove the designation of such forestry 
activities as nursery operations, site preparation, reforestation, 
thinning, cultural treatment, prescribed burning, pest and fire 
control, harvesting, surface drainage and road construction and 
maintenance as a nonpoint source category. Instead, it will redesignate 
them as potential point source discharges of pollution on a case by 
case basis, thereby ultimately subjecting the activities to Federal 
Clean Water Act discharge permits.
    Under the Clean Water Act, forest management operations have never 
been considered discharges subject to point source permits. Forestry 
operations have always been considered to have diffuse nonpoint source 
runoff. Congress in 1972 and, EPA in 1976, determined that there are no 
discharges from forestry operations that require a permit. In fact, EPA 
reaffirmed Congressional intent that forestry operations be designated 
as a nonpoint source category.

    Question 2. By granting a 5-year waiver from Federal NPDES permit 
requirements for forestry activities, does this provide for a more 
``flexible'' State TMDL program?
    Answer. No. States now have the authority to regulate forestry 
operations as nonpoint sources. The suggested revision keeps this 
authority in place for 5 years. The only increase in flexibility occurs 
from the absence of any Federal permit requirements during this period. 
At the end of the 5-year period, flexibility will definitely decrease 
as EPA will presumably insert Federal requirements into what has 
heretofore been an area of State jurisdiction.
    The removal of the nonpoint source designation exposes forestry 
activities to litigation over their status. Recognizing the authority 
to require NPDES permits, but not exercising that authority, has been 
ruled improper in the past by the Federal courts. The 5-year moratorium 
would very likely be subjected to a similar challenge.
    If there is a 5-year moratorium, why delete the designation of 
forestry as a nonpoint source category immediately? If permits will not 
be imposed for 5 years, why remove the designation and subject forest 
landowners to citizen suits. The new permitting requirements will 
jeopardize hundreds of billions of dollars in forest land ownership and 
investment. This revised approach provides no measurable improvements 
to water quality today and this uncertainty will place 9 million forest 
landowners around the country at legal risk. It will likely lead to the 
conversion of forest land to suburban sprawl and development.

    Question 3. EPA proposes to work with USDA and the public to 
develop guidance for States to follow in designing and adopting 
forestry BMP programs for the protection of water quality. What 
implications will this likely have?
    Answer. Under the Section 319 of the Clean Water Act, EPA reviews 
State nonpoint source programs for approval including State forestry 
programs. The forestry community continues to work with States and EPA 
to address State programs through a collaborative effort at the State 
level.
    This revised approach is more expansive than the proposed rule. 
EPA/USDA now claim authority to review and approve entire State 
forestry programs as opposed to reviewing each individual TMDL 
submitted by the State. There is no statutory basis or case law to 
allow the EPA to say that a forestry activity is or is not a point 
source discharge subject to Federal permits based on the proven 
effectiveness of a State forest management program.
    Through a public process to develop national forestry practices 
guidance, EPA/USDA now intend to federally dictate the development, 
implementation and enforcement of virtually every forest management 
activity conducted on all private forest lands in the country. In other 
words, if State forestry programs such as tree planting, harvesting, 
prescribed burning, pest and fire control, surface drainage, road 
construction and maintenance, thinning, cultural treatment, site 
preparation and nursery operations are inconsistent with Federal 
standards, EPA will impose Federal NPDES permits.
    Through this Federal oversight, EPA/USDA have for the first time 
provided environmental non-governmental organizations the ability to 
dictate how forest management operations should be conducted on private 
forest lands throughout the country. This could include the species of 
tree to plant, in what type of forest management operation is 
conducted, the width of a streamside management zone or if harvesting 
should even be allowed.

    Question 4. EPA claims that forest operators in States with 
approved programs will know what is expected of them, what BMPs are 
effective in reducing pollution and need to be implemented. The Agency 
indicates the willingness to provide ``credit'' for voluntary programs. 
What is the forestry community response?
    Answer. EPA does not specify what precise forest management 
criteria will qualify a State for having ``reasonable assurances'' that 
a TMDL will be implemented. EPA wants the discretion to approve State 
forestry programs based on undefined criteria. This is a blank check. 
In fact, the revised approach is likely to trigger Endangered Species 
Act consultation by requiring the EPA to consult with the U.S. Fish & 
Wildlife Service and the National Marine Fisheries Service when 
developing the national program criteria, determining program 
effectiveness and final approval of each State program.
    The joint policy statement indicates that voluntary and incentive-
based approaches ``will be given due credit.'' This statement is 
absolutely meaningless. Either the program is acceptable or 
unacceptable. According to the August 1999 proposal, only 10 
unidentified states were considered to have acceptable programs. EPA 
does not provide any indication as to how this was derived.

    Question 5. EPA states that existing Federal law requires forest 
operations on National Forest System lands to be conducted consistent 
with water quality requirements. Therefore, EPA/USDA provide an 
outright exemption from permitting requirements for U.S. Forest Service 
lands. How does the forest community respond?
    Answer. This is a political decision with absolutely no technical, 
legal, statutory or regulatory basis. This decision gets at the very 
heart of the entire misguided approach to the NPDES portion of the 
August 22, 1999 regulation. Under this ``revised'' approach, EPA now 
asserts its ability to distinguish what constitutes a point source 
discharge subject to Federal NPDES permits based on whether it is 
occurring on public or private lands.
    This is in addition to the fundamentally flawed premise contained 
in the proposed rule that EPA asserts discretionary authority to 
regulate forestry activities as a point source in impaired waterbodies 
but not in unimpaired waterbodies. This interpretation of their 
statutory authority is dubious at best and ripe for court policymaking 
rather than congressional policymaking.
    Under this theory, if the National Forest Systems are exempt, why 
not the National Park Service, the U.S. Fish & Wildlife Service, the 
Bureau of Land Management, Department of Defense, or every State/county 
forest or park or any private landowner that conducts forestry 
operations consistent with water quality requirements.`` State forestry 
best management practices programs are also designed to be consistent 
with achieving ``requirements.'' There should be equal treatment and 
recognition for all landownership under the Clean Water Act. EPA must 
withdraw the NPDES regulations of the proposed August 1999 rulemaking.

    Question 6. EPA claims that point source discharges to waters of 
the United States are not required to get a permit and will not be 
subject to citizen suit or government enforcement action under the 
Clean Water Act. How would the forestry community respond to that 
statement?
    Answer. Once EPA removes the regulation recognizing most forestry 
activities as nonpoint sources, forest landowners will be open to 
citizens suits alleging they must obtain a permit. When such a claim 
was filed against forestry activities on national forest lands, the 
court rejected the claim based on EPA's 23-year old recognition of 
forestry as a nonpoint source. Newton County Wildlife Assn. V. Rogers, 
141 F.3d 803 (8th Cir. 1998). Moreover, EPA has already lost on the 
issue of failing to identify which forestry activities have discharges 
making them point sources. Natural Resources Defense Council v. Costle, 
568 F.2d 1369 (D.C. Cir. 1977). EPA then adopted the current 
regulations that designate most forestry activities as nonpoint 
sources. Removal of this regulation will likely result in new citizen 
suits over this issue.

    Question 7. EPA states in their April 5 letter that ``Clean Water 
Act permits will not be required from diffuse runoff from forestry 
operations under any circumstances.''
    Answer. EPA has yet to confirm under the April 5th or May 1st 
approaches that NPDES permits will not be required under any 
circumstances for the following forestry activities:
    Nursery operations; Reforestation; Thinning; Pest and fire control; 
Site preparation; Cultural treatment; Prescribed burning; Harvesting 
operations; Road Construction and Maintenance; and Surface drainage

    Question 8. What are the costs and benefits of the redesignation of 
forest activities as a point source discharge?
    EPA has not provided any estimates of the specific benefits that 
can be obtained from the proposed NPDES forestry requirements. In 
addition, EPA's estimate of the incremental cost of the proposed rule 
totals less than $13.2 million. Other independent analyses conducted by 
university economists estimate the impact on the forestry community and 
State agencies at well over $100 million a year. In light of this 
rather large discrepancy in cost estimates and because the impact on 
forestry alone could exceed $100 million annually, we believe EPA has a 
responsibility to comply with the Unfunded Mandates Reform Act, the 
Regulatory Flexibility Act and Executive Order 12866 and conduct a 
thorough benefit and cost analysis before these rules are finalized.
                               __________

  TESTIMONY OF STEVE MOYER, VICE PRESIDENT OF CONSERVATION PROGRAMS, 
                            TROUT UNLIMITED

    Thank you for the opportunity to testify before the subcommittee 
today on behalf of Trout Unlimited (``TU'') concerning S. 2417, The 
Water Pollution Program Enhancements Act of 2000. TU is a nonprofit 
organization whose mission is to conserve, protect, and restore North 
America's Goldwater fisheries and their watersheds. TU has more than 
125,000 members in the United States. TU is opposed to any delay in 
implementation of the proposed revisions to the regulations governing 
the Clean Water Act's Total Maximum Daily Load (``TMDL'') program, and 
therefore opposes the bill as currently drafted because of the 18-month 
delay provision it now contains. Instead, we urge the subcommittee to 
support funding increases through the appropriations process for 
implementation of the TMDL program and Section 319 nonpoint pollution 
program.
    We believe that the subcommittee members share with the vast 
majority of the American people a strong desire to see the promises of 
the Clean Water Act fulfilled, to achieve fishable, swimmable waters 
throughout the Nation and to restore and maintain the integrity of the 
nation's waters. Although we have come far toward these goals, we have 
a long way to go, and getting a grip on nonpoint source pollution is 
surely our greatest water quality challenge.
    TU has put much effort into working with landowners and local, 
State and Federal agencies to prevent nonpoint source pollution to 
restore trout and salmon resources and the watersheds on which they 
depend. From the Blackfoot River in Montana, to the Kickapoo in 
Wisconsin, to the Beaverkill in New York, and Kettle Creek in 
Pennsylvania, we and our chapters have raised hundreds of thousands of 
dollars and spent thousands of hours working with agencies and other 
stakeholders to protect and restore great trout and salmon rivers. We 
understand the water quality challenges that lie before us because we 
are out there on the ground right now trying to address them.
    Therefore, we support aggressive implementation of the TMDL 
program, and the EPA proposal, because we think the proposal will help 
improve implementation of the TMDL program and help it do what it was 
supposed to do, clean up the nation's polluted waters. The proposed 
regulations do not create a new program; rather. they represent an 
effort to provide a more manageable and effective framework for the 
implementation of a program that has been in the Clean Water Act since 
1972. The proposed regulations do not impose any significant new 
burdens on the States or create any new regulatory mandates. Rather, 
the new regulations:
     create a locally driven process for the attainment of 
State water quality standards;
     provide for lengthy and flexible time deadlines for the 
publication of lists of impaired waters, for the drafting of TMDL 
plans, and for the actual attainment of water quality standards; and
     create no new regulatory requirements, but instead provide 
an effective framework for marshalling existing programs under the 
Clean Water Act, the Farm Bill conservation programs, and Federal land 
watershed programs, in order to make progress toward attaining water 
quality standards.
    S. 2417 provides two specific justifications for delaying 
implementation of the new regulations: the burden on States in 
complying with the regulations and the lack of adequate data for 
effectively implementing the TMDL program. Neither of these concerns 
justifies delaying the new regulations.

         I. THE TMDL REGULATIONS PLACE NO NEW BURDENS ON STATES

    Section 2 of S. 2417 points to the claims made by numerous States 
that they do not have the resources to implement the proposed 
regulations, and sections 4 and 6 would delay implementation of the new 
regulations until completion of a study that would, among other things, 
examine the cost of and alternatives to the TMDL program.
    At the outset it is critical to note that there is nothing ``new'' 
about any burdens imposed by the TMDL program. The statutory 
requirements for TMDLs were included in the original Clean Water Act 
when it was passed in 1972. Congress included the TMDL provisions 
largely at the request of the States to serve as a backstop when the 
Act's technology-based programs might prove inadequate to achieve the 
Act's goals of fishable and swimmable waters. The new regulations in 
fact only build on existing regulations that implement a statutory 
requirement that is more than 25 years old.
    The current impression of a ``rush'' to complete section 303(d) 
lists and TMDLs is in part a product of the fact that the States 
ignored the requirements of section 303(d) until quite recently. The 
fact that the TMDL program has not been adequately implemented in the 
past is no reason not to move ahead and implement it now. In fact, the 
unfortunate truth is that over 25 years of inaction has brought us to 
this point:
     20,000 water body segments are impaired and are in need of 
a TMDL pollution budget;
     of the 20,000 impaired waters, hundreds are in Idaho and 
dozens are in New Hampshire; and,
     in large part because of habitat loss, 35 species of trout 
and salmon are on the Federal Endangered Species Act list and many 
aquatic species populations are in decline in all regions of the 
nation.
    EPA's proposed changes do add some specificity to the TMDL program, 
including the requirement that each TMDL have an implementation plan. 
This additional specificity will lead to some additional resource 
needs. EPA has proposed increasing the annual appropriations available 
to States to administer and implement the TMDL and other Clean Water 
Act programs to $410 million in the Administration's 2001 budget. It 
has also proposed increasing funding to the States for nonpoint source 
programs from $200 to $250 million in fiscal year 2001. Some States, 
such as Oregon, have already stepped forward and committed additional 
resources to the restoration of water quality through the TMDL program. 
We urge you to help States get the additional funds they need by 
supporting the Administration's proposals in the appropriations 
process.
    It is also important to note the extensive time cushions built in 
to the new regulations. Currently, EPA requires States to submit lists 
of impaired waters under section 303(d) of the Act every 2 years; EPA 
has now proposed extending that to every 4 years. The new regulations 
give States 15 years just to develop the TMDLs for their impaired 
waters, but this is the deadline for the drafting of TMDLs only. EPA 
imposes no deadline whatsoever for TMDL implementation, that is, for 
when any given TMDL must actually result in attainment of water quality 
standards. The States thus have the maximum amount of flexibility in 
assessing when it is realistic and feasible to achieve water quality 
standards in any given water body.
    In addition, the new regulations impose no new substantive 
regulations. The development of a TMDL is fundamentally a locally 
driven process designed to marshal existing programs in a way that will 
restore a particular water body. First, each State develops its own 
water quality standards and, under general EPA guidelines, assesses 
which water bodies are not meeting those standards. Then, the States, 
working with localities and affected parties, collect and analyze water 
quality data, models, and other information to arrive at the most 
efficient way of reducing pollution. Indeed, the type of program that 
appears contemplated by the bill's ``Watershed Management Pilot 
Program'' could take-place under the TMDL program as envisioned by the 
new rules.
    The new regulations do include the requirement that every TMDL have 
an implementation plan. This plan must include a description of how 
existing State and Federal programs will be used to reduce pollution 
for the affected water body, and a timetable for achieving water 
quality standards. The regulations do not, however, require any 
specific timetable, but leave that decision up to the State and others 
participating in the drafting process. Although the drafting of an 
implementation plan for each TMDL may impose some additional burden, 
most TMDLs will be useless in achieving water quality standards without 
some meaningful effort to describe how the TMDL will be implemented. 
The implementation plan is a critical step that will move the TMDL from 
being a paperwork requirement to being a program that actually improves 
water quality. Indeed, we question how a State can be committed to 
cleaning up its waters, yet be opposed to deciding and planning how it 
will accomplish that with respect to each impaired water.

        II. MORE AND BETTER DATA IS NOT NEEDED TO START ON TMDLS

    In principle, TU supports improving the amount and quality of water 
quality data collected by the State and by Federal agencies. Indeed, we 
believe that more and better data would uncover additional water 
quality problems that current programs are missing. A recent GAO 
report, for example, found that, while data gaps are a problem, 
existing data do serve to identify the country's biggest problems, and 
that additional monitoring would likely turn up more problems, not 
less. Specifically, the report found that ``[e]ven though the State 
officials we interviewed are confident that they have identified their 
most serious pollution problems, they nonetheless acknowledge that more 
thorough monitoring would likely reveal additional waters that do not 
meet standards.'' (GAO, March 2000).
    More importantly, disputes about data do not justify further delay. 
The TMDL process is intrinsically adaptive to new data. Section 303(d) 
lists are not written in stone; every 4 years each State will have the 
opportunity to add and remove water bodies from its list as some waters 
achieve water quality standards, as others violate them, and as new 
data demonstrates that certain waters should be added or removed.
    Improvements in data collection and analysis will allow lists to 
improve in accuracy, and will also inform the drafting of TMDLs as that 
process unfolds over the next 15 years. For example, many States are 
already investing in improved data and monitoring methodologies that 
include biological and physical criteria in addition to the chemical 
criteria that are currently used. The scientific basis of biological 
and physical criteria is well supported by peer-reviewed research. Any 
additional study of these methodologies would be merely duplicative 
effort. There is absolutely no reason to further delay these new 
regulations for more than 18 months to study improved data collection 
and analysis.

  III. EPA'S TMDL PROGRAM HAS ALREADY BEEN SUBJECT TO EXHAUSTIVE STUDY

    Section 4 of S. 2417 directs EPA to contract with the National 
Academy of Sciences to study the scientific and regulatory 
underpinnings of the Clean Water Act's TMDL provisions. S. 2417 
authorizes $5 million for this study. The irony of this directive is 
that the TMDL portion of the Clean Water Act has been one of the most 
studied, written about, talked about, and litigated provisions of any 
environmental law--and it has not yet even been implemented on anything 
more than a trial basis in any State.
    The TMDL provisions of the Clean Water Act have already been the 
subject of an exhaustive 2-year study. In November 1996, EPA 
established a Federal Advisory Committee Act Committee (FACA Committee) 
to provide recommendations on improving the EPA's TMDL regulations. The 
FACA Committee was charged with examining new policy and regulatory 
directives for TMDLs, including an examination of the science and tools 
needed to support establishment of TMDLs. In other words, the FACA 
Committee was given a directive nearly identical to the one 
S. 2417 gives to a National Academy of Sciences study. In July 1998, 
the blue-
ribbon, 20-member FACA Committee completed its deliberations and issued 
a final report that contains over 160 specific recommendations for 
improving government efforts to identify impaired waters and establish 
TMDLs. Although not all of the FACA Committee recommendations were 
adopted, their final report informed the EPA's promulgation of its 
proposed TMDL rule.

                               CONCLUSION

    The TMDL program, including the EPA's new, proposed regulations, 
provides a large degree of flexibility and a considerable time cushion 
to the States. In addition, it sets up a process that is fundamentally 
locally driven, and imposes no new substantive regulations on 
pollution. Taking the position that these regulations are too 
burdensome is, in TU's views, equivalent to saying that cleaning up our 
waters is too burdensome, too expensive, or not worth the effort. Of 
course, we believe that cleaning up impaired waters is not only worth 
the effort, it is imperative. Instead of delaying the new TMDL program, 
TU urges you to help the States get the resources they need to restore 
their impaired waters.
    Thank you for the opportunity to testify today.
                               __________

     TESTIMONY OF DALE GIVENS, SECRETARY, LOUISIANA DEPARTMENT OF 
                         ENVIRONMENTAL QUALITY

    Mr. Chairman, members of the committee. My name is Dale Givens. I 
am the Secretary of the Louisiana Department of Environmental Quality.
    I am here today concerning S. 2417, the Water Pollution Program 
Enhancements Act of 2000. I appreciate the opportunity to provide these 
comments to you on behalf of the State of Louisiana.
    The list of comprehensive findings outlined in S. 2417 addresses 
many of the same issues and concerns raised by the State of Louisiana 
long before the U.S. Environmental Protection Agency (EPA) drafted the 
proposed new Total Maximum Daily Load (TMDL) regulations and the 
companion regulation pertaining to the National Pollution Discharge 
Elimination System (NPDES) permit program.
    In particular, Louisiana wholeheartedly agrees with the statement 
in the bill that ``any Federal regulatory or nonregulatory water 
quality management program must be based on sound science, must be 
effectively and efficiently implemented, and must have the strong 
support of affected stakeholders, including State and local 
governments, landowners, businesses, environmental organizations, and 
the general public''.
    The concept of focusing public and private resources first on those 
waters where reliable monitoring data has demonstrated actual 
impairment by pollutants as opposed to listing waterbodies as impaired 
based on anecdotal information unsupported by reliable monitoring or 
other analytical data should be fundamental to an efficient water 
quality management program. Unfortunately, States have often not been 
allowed to do so due to requirements and ``guidance'' provided by EPA.
    I am pleased to see that this bill considers adequate funding for 
these water quality issues to be a high priority and as such proposes 
to increase funding to both Sections 106 and 319 of the Federal Water 
Pollution Control Act while at the same time providing for a reasonable 
match requirement for the Section 319 program. The current 40 percent 
match requirement has been a significant impediment to getting nonpoint 
source control projects on the ground. Similar language should be added 
to the bill concerning Section 106 as EPA is now proposing increases in 
the match for this program as well. These proposed amendments recognize 
not only the need for additional funds but also the need to be able to 
use those funds in support of both traditional and new and innovative 
corrective mechanisms envisioned for nonpoint sources.
    S. 2417 appropriately focuses on key funding gaps that impede the 
States in the successful execution of water quality management 
programs. Specifically, this proposed bill targets additional funding 
for the collection of reliable monitoring data. I am extremely pleased 
with the focus of attention on the need for comprehensive, reliable 
monitoring data that accurately represents true water quality 
conditions. How else can a reliable and defensible assessment of the 
quality of our waters be prepared?
    S. 2417 proposes a study to be conducted by the National Academy of 
Sciences to address key elements of a credible and successful water 
quality management program. In particular, the study proposes to 
investigate scientific methodologies used to identify impaired waters 
and develop and implement TMDLs, and how much those methodologies cost. 
The study will investigate total costs associated with a water quality 
management program that would be responsible for not only appropriately 
identifying impaired waterbodies but also implementing whatever 
traditional and non-traditional mechanisms are available to support the 
management program's success.
    Such a study is long overdue. States and others have commented to 
EPA that they believe the original costs estimates concerning the 
implementation of the proposed rules were grossly underestimated and 
that credible tools and methodologies were lacking in key areas.
    I agree that EPA should be required to review and consider the 
completed National Academy of Sciences Study before finalizing their 
proposed changes and additions to the National Pollutant Discharge 
Elimination System Program and Federal Antidegradation Policy 
(published August 23, 1999) and the Water Quality Planning and 
Management Regulations Concerning Total Maximum Daily Loads (published 
August 23, 1999).
    While many argue that the development of TMDLs has been delayed far 
too long, and that argument is a key part of many of the 34 lawsuits 
that I am aware of concerning the States and EPA's failure to timely 
develop TMDLs, there is no national emergency that would justify 
rushing to implement quick solutions that may not result in successful 
outcomes for these complicated issues. These ``quick fixes'' may 
actually be responsible for the expenditure of great sums of money 
without an attendant improvement in water quality. This bill would 
allow additional time to investigate some of the major issues that 
States are facing in trying to promote a credible program to improve 
impaired waters. It is sometimes very difficult to fairly and 
accurately determine what valid and documentable connections exist 
between individual sources and any impacts that are occurring in the 
waters. As this bill has so succinctly declared, there is a very real 
need to obtain and sustain scientific, financial, and public support 
necessary to develop sound TMDLs. This is particularly true in light of 
the difficult and expensive implementation decisions that will 
undoubtedly have to be made as a result of the TMDLs developed.
    S. 2417 provides for the needed additional time for the nation's 
water quality management authorities--and EPA, to make a deliberate and 
critical review of the many diverse uses of water resources and to 
determine what are the best tools and methods to be used to address 
those waters that need improvement.
    Louisiana remains committed to developing high quality TMDLs that 
can actually help to improve water quality and restore impaired 
waterbodies so that they may fully support their designated uses. In 
fact, Louisiana was one of the first States to make a substantial 
commitment toward this end by successfully implementing a 15 percent 
fee increase that provides for funding ($1.7 million per year) and 36 
additional employees to work in the TMDL program.
    However, I believe that all States should be afforded the 
opportunity to utilize comparable timeframes and methodologies in order 
to develop and implement scientifically credible and practical TMDLs 
that will successfully address the pollutants of concern. The current 
situation where the courts are ordering drastically compressed 
timeframes in which the TMDLs must be developed and implemented (5 to 7 
years)--while EPA is proposing up to 18 years in States not involved in 
the lawsuits, is both unfair and impractical if not impossible to 
accomplish. The only way to correct this gross injustice is for 
Congress to provide for this standard schedule by surgically amending 
the Clean Water Act to accomplish this end.
    In addition, the new TMDL regulations should ultimately provide all 
States with the flexibility to establish their own priorities and 
associated schedules in developing successful TMDLs that are in concert 
with the water quality needs of each State while embracing national 
perspectives and goals.
    While I am aware that EPA has indicated to the Congress, States and 
others that it intends to modify the proposed regulations in partial 
response to concerns raised, it is my opinion that such modifications 
do not go far enough and that the regulations should be delayed until 
the conditions set forth in S. 2417 have been met and additional 
opportunity for review by the Congress and the States has been 
provided.
    Mr. Chairman, members of the committee, I believe that you are 
aware that the States and their citizens support the Federal Water 
Pollution Control Act's goal to restore and maintain the nation's water 
quality. The State of Louisiana has always been an active and 
successful advocate for the protection of water resources. It is 
important to ensure that all of our management resources are utilized 
productively and that we focus our first efforts on those waters that 
are actually impaired and need priority attention. This bill proposes 
the needed additional time to identify credible tools and methodologies 
while providing essential additional funding with which to implement 
those tools.
    In closing, I would like to offer my support to the committee and 
EPA in further developing effective regulations that will assist the 
States in improving and maintaining water quality in this country.
                               __________

  Testimony of Robert P. Miele, California Association of Sanitation 
                                Agencies

                              INTRODUCTION

    Mr. Chairman and members of the subcommittee, I appear before you 
today on of the California Association of Sanitation Agencies (CASA), 
an organization representing 92 POTWs throughout the State of 
California. Thank you for the opportunity to present our views on the 
TMDL rulemaking process, issues of concern in California and our 
recommendations to address these concerns. CASA agencies provide clean 
water services to more than 25 million Californians. I also appear 
before you as a representative of the Los Angeles County Sanitation 
Districts that provide treatment to more than 5 million citizens in 78 
cities within Los Angeles County. In this capacity, I have first hand 
experience with the TMDL process and water quality standards.
    With the enactment of what is commonly called the Clean Water Act 
(CWA) in 1972, Congress supplemented previous water quality control 
practices, which were solely based on a water quality standards 
approach, with a new technology-based program applying specific 
limitations to industrial and POTW dischargers. Municipal dischargers 
were required to implement ``secondary treatment,'' while industrial 
dischargers were required to implement ``Best Available Technology.'' 
While there were other sections of the Act that were intended to 
address other sources of pollution (section 208), it is clear that 
Congress wanted first to have these so-called point sources controlled. 
Any remaining pollution after implementation of technology-based 
practices would be addressed by implementation of practices such as 
section 303(d) etc. Later, additional sections were added to the Act to 
address these other nonpoint sources of pollution (section 319). These 
technology standards made huge strides in improving water quality by 
preventing billions of pounds of pollutants from flowing into our 
nation's waters from POTWs and industries each year. This is no small 
feat considering that the number of Americans served by POTWs has more 
than doubled nationwide.
    Section 303(d) of the CWA was virtually ignored by States and by 
the EPA until fairly recently. Due primarily to the numerous lawsuits 
filed and won by environmental organizations, much attention has been 
focused lately on the TMDL provisions of Section 303(d). TMDLs have 
become very controversial because EPA estimates that within the next 15 
years 40,000 TMDLs must be adopted,\1\ each of which will result in 
more stringent controls on pollutant sources.
---------------------------------------------------------------------------
    \1\ EPA, Analysis of the Incremental Cost of the Proposed Revisions 
to the TMDL Program Regulations at 9, 32 (Dec. 21, 1998).
---------------------------------------------------------------------------
    Although it is hoped that responsibility for attaining water 
quality standards and requisite pollutant loads will be equitably 
allocated among point and non-point sources of pollutants, POTWs have 
become concerned over the TMDL program as additional restrictions on 
point source discharges are likely to be the most heavily weighted part 
of the TMDL equation. This concern stems primarily from the potential 
permitting ramifications and the costs associated with having to 
install additional control technologies, beyond secondary treatment or 
even tertiary treatment, to meet wasteload allocations assigned under a 
TMDL adopted as a result of a 303(d) listing. POTWs also fear that ``if 
nonpoint source tradeoffs are not available or the controls developed 
as a result of a `tradeoff ' fail to achieve water quality standards, 
the NPDES permit becomes the ultimate method of achieving standards.'' 
\2\
---------------------------------------------------------------------------
    \2\ EPA Memo from Geoff Grubbs, Director, Assessment and Watershed 
Protection Division, EPA Headquarters to TMDL Coordinator, Regions I-X, 
re: Supplemental Guidance on Section 303(d) Implementation, attachment 
on Section 303)d) Program Guidance at 2 (Aug. 13, 1992).
---------------------------------------------------------------------------
    With this background, CASA appreciates the opportunity to provide 
Congress with the following comments:
Positive aspects of EPA's proposed TMDL program
    We support requiring States to adopt a listing methodology pursuant 
to State law. States should adopt an explicit listing methodology that 
specifies the type and quality of data to be used and the minimum 
number of exceedances of a water quality standard required to 
demonstrate impairment. This methodology should go through public 
review and comment prior to finalization. However, there should be no 
requirement for States to submit listing methodology to EPA for 
approval.
    We support requiring an implementation plan for TMDLs. It will be 
difficult to determine whether a TMDL will reasonably be achieved and 
attain water quality standards until the details of implementation are 
identified. Thus, TMDL allocations, allowances, and implementation 
plans are needed to make sure a TMDL will result in the attainment of 
water quality standards. Without these implementation measures, it is 
likely that either (1) little action would be taken to go beyond the 
establishment of a TMDL, or (2) limited public resources would be spent 
on litigation forcing the process to move forward instead of actually 
moving forward toward the attainment of water quality standards. 
However, TMDL allocations, allowances, and implementation plans should 
be done by States pursuant to CWA's Continuing Planning Process 
requirements under Section 303(e), not required as part of the TMDL 
that must be approved by EPA.
    We support the use of good data in decisionmaking processes. In 
particular, we support the collection, analysis and use of quality 
assurance and control programs to assure scientifically valid data. 
While we understand the impatience of many over not having all our 
nation's waters achieve their water quality standards; it is foolish to 
move forward without good data. EPA should establish minimum data 
quality requirements to be used at every level of the TMDL process, 
from listing waters as impaired to calculating the appropriate loads to 
apportioning the allocations among sources. If minimum data quality is 
not required, the States' and EPA's limited resources would be wasted 
on waters that later are determined not to be impaired.\3\
---------------------------------------------------------------------------
    \3\ See EPA's recent decision to withdraw the TMDLs for copper in 
two east coast waters because of a subsequent determination that the 
waters were not impaired for copper. 65 Fed. Reg. 2398-2400 (January 
14, 2000).
---------------------------------------------------------------------------
    We support EPA's public participation requirements. These 
requirements mandate that States provide no less than 30 days of public 
review and comment on 303(d) lists, priority rankings, TMDL schedules, 
and the TMDLs themselves. States must also provide EPA with a summary 
of all comments as well as the State's response to comments, and must 
indicate how the public's comments were considered in the State's final 
decision.
Problemmatic aspects of EPA's proposed TMDL program
    We do not support a regulatory program that overrides the watershed 
approach. The watershed approach to water pollution control involves 
consideration of all pollutant sources in a particular watershed to 
optimize the solutions and ensure water quality standards are attained; 
thus, a watershed approach prevents some sources from falling through 
the cracks. EPA has been advocating a watershed approach for several 
years now, and has acknowledged that this approach will result in cost-
effective and equitable solutions. However, EPA's proposed TMDL program 
backs away from its commitment to a cooperative local watershed 
approach in favor of a command-and-control approach where EPA possesses 
greater authority and the ability to trump locally devised water 
quality control programs.
    We believe TMDLs should be viewed as merely one tool for 
controlling water pollutants and meeting water quality standards. 
Instead of considering TMDLs to be one of the many tools provided to 
EPA and the States under the CWA for protecting and maintaining water 
quality, the proposed program elevates TMDLs to the ultimate weapon in 
EPA's arsenal for meeting standards. CASA believes that this result was 
unintended by Congress. Below, CASA provides other alternative 
mechanisms that EPA could utilize to accomplish the same result, 
potentially in a more reasonable, equitable, and cost-effective manner.
    We advocate conducting in-depth water quality standards reviews on 
a regular basis nationwide. Generally applied water quality standards, 
although meeting the minimum requirements of the CWA and EPA 
regulation, may be inappropriate (either over- or under-protective) for 
a specific water body that has not had an in-depth standards analysis. 
Even if an in-depth standards analysis has been done in the past, 
changes in the uses of the water body since that time may make 
different standards more appropriate. Furthermore, site-specific 
criteria may be appropriate because of specific local environmental 
conditions. Congress recognized this need by requiring triennial 
reviews of water quality standards under Section 303(c). However, in-
depth review rarely if ever occurs, and adjustment of uses and criteria 
to properly fit existing or attainable conditions is even more rare. 
Since TMDLs are triggered by a failure to attain water quality 
standards, EPA should be required to delay final promulgation of these 
TMDL regulations until they promulgate its promised water quality 
standards regulations to ensure appropriate standards result in 
appropriate control measures.
    We believe EPA has exceeded its statutory authority in its proposed 
regulations. For example, in requiring ``pollution,'' endangered 
species and drinking water issues, threatened waters, and 
antidegradation concerns as part of the 303(d) listing process, it 
appears that EPA has exceeded the authority granted the agency under 
the plain language of the CWA.
    We question the accuracy of EPA's cost estimates. We believe that 
EPA seriously underestimated the costs of adopting and implementing 
TMDLs by incrementalizing the process and only looking at one small 
increment. EPA narrowed its analysis to only those costs associated 
with the States (and Tribes) responsibilities in listing waters and 
adopting TMDLs and implementation plans. EPA failed to estimate the 
larger increment of costs incurred by the sources allocated a limited 
load under the TMDL (e.g., POTWs, industries, storm water dischargers, 
and landowners). Congress should encourage EPA to look at the total 
cost of the proposed program from listing to attainment of water 
quality standards.
Explanation of California's situation
    One of the reasons CASA was asked to testify in these TMDL hearings 
was to explain the unique factual and legal issues present in 
California. California is home to the Pronsolino case, where the timber 
and agricultural communities sued EPA over whether or not EPA has the 
authority to regulate non-point sources under CWA Section 303(d). 
Numerous environmental organizations, most recently the San Francisco 
and San Diego BayKeepers, have sued EPA to establish schedules for 
adopting and implementing TMDLs in California.
    In addition, CASA and a companion organization, the Southern 
California Alliance of POTWs (or SCAP), have sued the State and EPA 
over Clean Water Act issues, including section 303(d). A copy of our 
Federal complaint is attached to this testimony. These lawsuits were 
filed, in part, because of POTW frustration with the 303(d) listing 
process and the permitting implications of discharging into a waterbody 
deemed to be impaired. EPA Region IX has issued draft guidance for 
issuing permits in the absence of TMDLs. The guidance directs the State 
to impose a number of onerous requirements on POTWs before TMDLs are 
completed, including immediately enforceable mass limitations with 
significant impacts on local community growth and economic development. 
In addition, the guidance calls for ``no net loading'' of certain 
pollutants, which will require POTWs to offset 100 percent of their 
discharges, without regard to their proportional contributions.
    As a case study, one could look at the Sacramento Regional County 
Sanitation District, a CASA member agency. The Sacramento regional 
plant discharges treated wastewater into the Sacramento River, which 
flows into the Sacramento/San Francisco Bay Delta and San Francisco 
Bay, both of which are on California's 303(d) list for mercury. Most of 
the mercury loading to these waterbodies is from historic, and now 
abandoned, mining operations, and some comes from atmospheric 
deposition. The Sacramento regional plant discharges less than 1 
percent of the total mass loading of mercury to the Bay Delta. Despite 
this fact, Sacramento has been instrumental in spearheading, and 
securing congressional funding for, a stakeholder driven watershed 
program to address water quality issues such as mercury. Sacramento has 
spent large amounts of staff time and over $500,000 annually since 1995 
on the watershed program and on collecting ambient water quality 
monitoring data, which can be used to calculate and implement a TMDL.
    Although Sacramento should be rewarded for its efforts, it is 
currently facing severe discharge restrictions in the interim before 
the TMDL is done. If other recent permitting proposals overseen by EPA 
Region IX are any indication, these discharge restrictions potentially 
could include the imposition of interim mass limits thereby imposing 
corresponding growth limits on the surrounding community. Regulators 
may also propose the elimination of dilution and mixing zones, or 
impose zero discharge requirements,\4\ which could require Sacramento 
to install expensive control technologies. All this is prior to the 
adoption of (and may well presuppose the outcome of) a TMDL that is 
supposed to equitably allocate the total loading to all sources. 
Moreover, even if Sacramento spent its sewer ratepayers' money to build 
additional treatment facilities that would be needed to comply with 
these discharge restrictions, in the absence of a fully implemented 
TMDL, the water quality benefits of removing less than 1 percent of the 
loading would be negligible and the water quality standards would still 
not be attained.
---------------------------------------------------------------------------
    \4\ See Letter from Alexis Strauss, Acting Director, Water 
Division, EPA Region IX to Loretta Barsamian, Executive Officer, 
California Regional Water Quality Control Board, San Francisco Bay 
Region re: Comments on the Tentative NPDES Permit for the Tosco 
Corporation Avon Refinery at 1 (July 22, 1999) (stated that because 
pollutants being discharged were included on the State's 303(d) list, 
the discharge must be controlled by criteria applied end-of-pipe or 
through equivalent mass limits, and ``mixing zones should not be 
allowed for the listed pollutants.''); Letter from Alexis Strauss, EPA 
Region IX to Lawrence Kolb, Assistant Executive Officer, California 
Regional Water Quality Control Board, San Francisco Bay Region re: 
Comments on the Tentative NPDES Permits for the Tosco Corporation Avon 
Refinery at 7 (Nov. 12, 1999) (``in the absence of these TMDLs, the 
only [water quality-based effluent limitation] that would assure the 
discharge does not cause or contribute to an exceedance of the 
narrative criteria is a loading of zero.'')
---------------------------------------------------------------------------
    CASA wants to be certain that the TMDL regulations, or even worse 
the permit-by-permit policymaking, do not impose treatment requirements 
for treatment's sake. Limited financial resources should be utilized to 
solve the water quality problems in an equitable manner taking into 
account technical and economic constraints. We think this can be done 
within the confines of the existing CWA language, or through 
congressional directives given to the EPA, as follows:
Potential approaches to attain water quality standards
    When read in its entirety, the CWA sets out a logical stepwise 
process for addressing water quality. Unfortunately, the implementation 
of the Act's mandates by States and EPA has been less than 
comprehensive and, thus, the inherent logic of the Act has been lost. 
This result could have been different had EPA and the States properly 
followed the statutory mandates per the explicit legislative intent of 
the Clean Water Act. However, we believe that it is not too late to 
refocus the water quality regulatory processes and we suggest the 
following:
    Re-energize the Section 208 planning processes. We believe that 
Section 208 was intended to be the primary planning procedure under the 
CWA. Section 208, under the areawide waste treatment management 
planning process, required the establishment of a regulatory plan to 
deal with many of the currently pressing pollution problems at issue 
under TMDLs, such as agricultural return flows, animal manure disposal, 
mine-related pollution, land use planning, construction activity 
runoff, and dredge and fill materials.\5\ States were also charged with 
identifying measures necessary to carry out the plan, the costs of 
doing so, and the economic, social, and environmental impacts. 
Unfortunately, most States adopted plans, saw the price tag, and 
shelved them. Congress required annual updates and certifications that 
are not being performed. A simple directive to EPA could reinvigorate 
the 208 process.
---------------------------------------------------------------------------
    \5\ See 33 U.S.C. 1288(b)(2)(C).
---------------------------------------------------------------------------
    Recognize the importance of the 305(b) Reports. Section 305(b) 
requires States to biennially produce a report providing a broad 
assessment of all waterbodies, the types of impairments, and the 
available and practicable options for meeting statutory objectives 
along with the resultant costs, benefits, and environmental impacts of 
each option. If properly done, Congress and the public would have been 
made aware of the significance and cost of meeting water quality 
standards and remedying impaired waters as reflected in the 305(b) 
Report. However, no State has ever attempted to describe the full 
extent of economic and social benefits and costs associated with 
progress in improving and protecting water quality conditions in 305(b) 
Reports.\6\ A simple directive to EPA could encourage additional 
oversight over State 305(b) submittals to ensure compliance with 
statutory requirements.
---------------------------------------------------------------------------
    \6\ See e.g., EPA's ``National Water Quality Inventory--1996 Report 
to Congress,'' EPA Document No. EPA841-R-97-008 at pg. 509 (April 
1998); EPA's ``National Water Quality Inventory: 1992 Report to 
Congress'' at pg. 321 (March 1994).
---------------------------------------------------------------------------
    Discourage overly stringent permit restrictions prior to TMDL 
implementation. The U.S. Supreme Court has determined that nothing in 
the CWA suggests that Congress intended to prohibit discharges to 
impaired waters.\7\ Instead, the Act contains provisions, namely 
Section 303(d), designed to remedy water quality impairments and 
allocate the burden of attaining standards between existing sources. A 
simple directive to EPA to discourage the imposition of effluent 
limitations under Section 301(b)(1)(C) prior to the adoption of a TMDL 
to implement a water quality standard could remedy the current 
adversarial permitting situation, particularly in California. CASA has 
prepared draft language to amend the Act to deal with this short-term 
problem and I would like to submit this language for the record as part 
of this testimony.
---------------------------------------------------------------------------
    \7\ See Arkansas v. Oklahoma, 503 U.S. 91, 107-108 (1992).
---------------------------------------------------------------------------
    Encourage an economic analysis component within water quality 
standards adoption and revision. In addition to urging EPA to uphold 
the triennial review process and to promulgate water quality standards 
regulations alongside the proposed TMDL regulations, a simple directive 
to EPA urging inclusion of a social and economic component to the 
consideration of ``use and value'' required under the Section 
303(c)(2)(A) standards revision and adoption processes could encourage 
the adoption of more appropriate, site specific water quality 
standards. Such an analysis would be particularly valuable for 
dischargers in Western States that discharge into water dominated by or 
dependent upon treated wastewater to maintain flow.
    In conclusion, CASA believe that to achieve full compliance with 
the goals of the Clean Water Act, there must be a realization that 
considerably more time and money will have to be expended than has 
already been spent to date. In a sense the easy part has been done 
(i.e. implementation of technology-based standards). A broader, more 
holistic approach must now be taken. Many of the tools to do this 
already exist in the Act. However, there may be the need to make some 
revisions to the Act that will ensure that cost-effective solutions are 
reached. CASA stands ready to assist you in that effort. Thank you for 
the opportunity to share our views with you today.
                               __________

  TESTIMONY OF JOHN BARRETT, AGRICULTURAL REPRESENTATIVE, EPA'S TMDL 
                       FEDERAL ADVISORY COMMITTEE

                              INTRODUCTION

    My name is John Barrett, I am a fifth-generation cotton and grain 
farmer from Edroy, Texas. I appreciate the opportunity to appear before 
to this committee on 
S. 2417 and EPA's proposed revisions to the water quality planning and 
management regulation. My comments today will address S. 2417, the 
Water Pollution Program Enhancements Act of 2000 and EPA's proposed 
rulemaking to revise the regulations implementing the Total Maximum 
Daily Load (TMDL) program. I will briefly highlight several areas of 
interest and concern to agriculture.
     the water pollution program enhancements act of 2000, s. 2417
    I strongly endorse the approach to nonpoint source water quality 
issues in 
S. 2417. The legislation recognizes the need for increased resources to 
States and individual landowners in order to implement effective 
nonpoint source programs. Farmers, ranchers and foresters know that 
water quality can be protected and improved with the use of proper 
conservation and best management practices. Currently, voluntary, 
incentive-based stewardship programs cover millions of acres of 
farmland, forests, and rangeland and protect water quality. Additional 
financial and technical assistance is needed to ensure the continued 
protection of natural resources and productivity.
    I also believe that it is necessary for further study of the use of 
Total Maximum Daily Loads as a method to improve water quality from 
point and nonpoint sources. The current EPA TMDL rule proposal could 
undermine ongoing State nonpoint source programs and impose large costs 
on States and landowners. The brief 18-month delay in the proposed rule 
is certainly reasonable in order to achieve a workable approach for 
nonpoint sources to protect water quality.
    A recent General Accounting Office (GAO) report shows that States 
do not have the scientific data necessary to develop TMDLs for nonpoint 
source impaired waters. The funding proposed in the legislation to help 
States collect reliable water quality monitoring data and to improve 
the States' Clean Water Act (CWA) section 303(d) lists will be crucial 
in preparing accurate lists and directing resources to real problems.
    An effective nonpoint source water quality program must be based on 
sound science, accurate data, Federal, State and local partnerships, 
and properly funded non-regulatory approaches to protect and improve 
water quality. For these reasons I strongly support S. 2417.

                          EPA'S TMDL PROPOSAL

The proposed regulations are contrary to congressional intent
    The proposed regulations empower EPA to regulate nonpoint sources 
of pollution through the TMDL program. Congress did not intend for EPA 
to possess such power. Congress made a conscious decision to treat 
point and nonpoint sources differently and separately in the CWA. Point 
sources are directly regulated by EPA through effluent limitations and 
a permitting system. By contrast, nonpoint sources are managed by the 
States through Federal grant programs that encourage States to develop 
nonpoint source management plans.
    The proposed regulations permit EPA to list nonpoint source-
impaired waters; to develop TMDLs for nonpoint source-impaired waters; 
and to establish implementation plans for nonpoint source-impaired 
waters. In other words, the proposal provides for Federal land use 
regulation. EPA will be telling farmers and ranchers how and when they 
can harvest their crops and use their land. Cities can regulate land 
use, some counties can regulate land use, States can do it within 
limits, but the Federal Government needs unambiguous statutory 
authority to regulate land use. By this I mean Congress passing a law, 
not the EPA administrator writing a regulation.
The proposed regulations set unattainable standards
    Congress elected to treat point and nonpoint sources distinctly for 
good cause. Congress realized that because of its diffuse and 
complicated nature, nonpoint source pollution did not lend itself to 
rigid point source-type controls. Rather, nonpoint source pollution had 
to be managed through flexible standards. Watershed managers and 
nonpoint source professionals are well aware of this problem. Farmers 
and ranchers can't control the rain! But nonpoint source TMDLs expect 
them to. All four components of the term--Total, Maximum, Daily and 
Load--imply a constant, engineered and controllable environment. Many 
environmental groups have long argued that a TMDL has to be just what 
it says it is--an enforceable DAILY load. For agriculture, this means 
that farmers are in jeopardy of breaking the law any time a significant 
rainfall event occurs. Such an outcome is preposterous. As Congress 
recognized in 1972, while nonpoint sources can be managed ``to the 
extent feasible,'' they cannot be expected to meet any quantifiable 
daily load limitations.
The proposed regulations are impractical
    In its zeal to redefine nonpoint source runoff as a ``discharge'' 
subject to 303(d), EPA is attempting to drive a square peg into a round 
hole. The Federal Section 319 Nonpoint Source Program merely encourages 
States to reduce pollution ``to the maximum extent practicable'' 
through best management practices (BMPs). Section 303(d) has a 
different bar. Compliance with Section 303(d) is not achieved until 
water quality standards are attained. For nonpoint source runoff, this 
raises the not-so-hypothetical possibility that a source would have to 
be eliminated from a watershed in the event that BMPs and modified BMPs 
ultimately prove ineffective in attaining water quality standards. This 
does not make sense to reasonable people who understand the vagaries of 
weather. The TMDL Federal Advisory Committee reached a consensus 
agreement that BMPs implemented to achieve TMDLs would have to pass the 
bar of practicability (economically achievable) as established in 
Section 319. EPA has failed to introduce the concept of practicability 
in either the preamble or the proposed TMDL regulation.
The proposed regulations do not adequately address data issues
    Successful TMDL development and implementation will occur when 
States have attainable water quality standards, when they have 303(d) 
lists which are derived by an ambient monitoring program, and not by 
drive-by assessments or windshield monitoring. Sufficient resources 
must be devoted to the TMDL development process in order to provide 
scientifically adequate input parameters and robust stakeholder 
involvement in the entire process. EPA should revise its standard to 
require States to establish quality assurance/quality control (QA/QC) 
programs to ensure the reliability of water quality data on which 
listing decisions and TMDL calculations are based. EPA should revise 
its standard for data and require only the use of reliable data, e.g., 
to require the use of ``all reliable and credible existing and readily 
available water quality-related data and information.''
The proposed regulations cover pollution as well as pollutants
    The statute requires the listing of waters for which technology-
based effluent limitations--which govern the discharge of pollutants--
are not stringent enough to meet water quality standards. The statute 
requires TMDLs ``for those pollutants which EPA identifies . . . as 
suitable for such calculations.'' Placing ``pollution'' impaired waters 
on the Section 303(d) list can only increase confusion among States and 
the public over the function of the TMDL program.
The proposed regulations allow EPA to designate nonpoint sources as 
        point sources
    The proposed regulations allow EPA to designate nonpoint sources as 
point sources. They propose to regulate nonpoint sources, private 
forestry and livestock activities for such practices as harvesting, 
site-preparation, road construction, thinning, prescribed burning, pest 
and fire control, land application of organic nutrients and nutrient 
utilization plans by requiring landowners to obtain point source 
discharge permits for these land use activities. This proposed action 
is an unjustifiable expansion of the agency's authority, constitutes 
significant Federal intrusion into private activities and overrides 
State and private control of land-use decisions.
Agriculture is willing to be a part of reasonable and lawful water 
        quality management programs
    Agriculture is working at every level to ensure that farmers and 
ranchers are up to speed on water quality standards and monitoring 
programs. Farmers and ranchers are engaged in activities and practices 
to improve and protect water quality. Conservation tillage practices 
are being used on more than 60 percent of our nation's farmland, saving 
hundreds of millions of tons of topsoil annually. Over 600,000 miles of 
conservation buffers have been installed on farms. Thirty-six million 
acres are being protected through the Conservation Reserve Program. 
Voluntary nutrient management plans are prepared annually by USDA's 
Natural Resources Conservation Service for approximately 10,000 farms.
    The process to protect water quality must be reasonable My 
experience as a member of a National Estuary Program Management 
Conference and as a participant in the development of a complex and 
contentious TMDL have convinced me that the only workable solution to 
watershed management is the ``bottoms up'' approach as opposed to 
``command and control.''

                               CONCLUSION

    Over the decades farm and ranch families have achieved 
extraordinary conservation gains through voluntary, incentive-based 
programs to conserve fragile soils, wetlands, protect water quality and 
wildlife habitats. I believe that EPA's current effort to expand the 
scope of regulation will not effectively or efficiently improve 
nonpoint source water quality I believe the nonpoint source issues 
outlined in EPA's TMDL proposal are best addressed through incentive-
driven programs, implemented by those with the most interest in the 
environmental quality of America's land and water resources--farmers, 
ranchers, and foresters. I strongly endorse S. 2417 and its approach of 
supporting the efforts of our nations landowners to improve water 
quality.
                               __________
             The Associated General Contractors of America,
                                      Alexandria, VA, May 15, 2000.
Hon. Mike Crapo, Chairman,
Subcommittee on Fisheries Wildlife and Drinking Water,
U.S. Senate,
Washington, DC.
    Dear Chairman Crapo: The Associated General Contractors of America 
(AGC) supports the Water Pollution Program Enhancements Act of 2000, S. 
2417. This legislation will allow for a comprehensive study of nonpoint 
source pollution and strategies to manage it. This study, conducted by 
the National Academy of Sciences, will determine if the Environmental 
Protection Agency's (EPA) regulatory approach will achieve the desired 
results.
    In August 1999, EPA proposed several regulatory amendments to the 
Total Maximum Daily Load (TMDL) program, the National Pollutant 
Discharge Elimination System (NPDES) also known as the storm water 
permit program, and the Water Quality Act. AGC believes that EPA's 
proposal overreaches existing authority under the Clean Water Act. It 
incorrectly places the burden of controlling nonpoint source pollution 
on the permit applicant that in many cases is the construction 
contractor. In addition, the proposal underestimated the cost of the 
rule on States and undermines State delegation of the National 
Pollutant Discharge Elimination System.
    Current NPDES regulations require construction jobsites over five 
acres to obtain a storm water permit, design a storm water pollution 
prevention plan (SWPPP), and install and maintain BMPs. By 2003, 
jobsites over one acre will be required to obtain a permit, design a 
SWPPP, and install and maintain BMPs. AGC members would be directly 
affected by the offset proposals in the storm water general permit 
proposals in the TMDL proposed rule.
    EPA is proposing a one and one half to one offset (1\1/2\:1) for 
pollutant load reductions. These offsets apply to operations in the 
same watershed and for the same pollutant. The proposal is attempting 
to regulate nonpoint sources like point sources through the offset 
provision. EPA states, ``this proposed requirement will result in load 
reductions from sources that EPA and States authorized to administer 
the NPDES program cannot regulate under the NPDES program'' (p. 46065). 
EPA admits this is an attempt to expand its regulatory authority over 
nonpoint sources without any statutory guidance from Congress.
    According to the preamble, the offset proposal has no guarantees of 
achieving any environmental benefit. ``Since nonpoint sources are not 
subject to a NPDES permit, the permitting authority may have less 
ability to ensure that offsets are implemented and maintained'' (p. 
46066). EPA is attempting to regulate an area in which it has no 
statutory authority by imposing permit requirements on the construction 
industry. Despite the lack of guaranties, EPA is seeking comment on the 
permittee being required to certify that offsets will be achieved. AGC 
objects to the certification requirement. Vagaries of weather, 
topography, and best management practices do not allow for guaranties 
of this nature. Certification would expose contractors to harsh 
penalties under the False Claims Act should an unexpected 500-year 
weather event undermine the best intentions of an approved offset plan.
    Placing offset requirements and other requirements within the 
construction general permit is another area for which EPA is seeking 
comment. AGC objects to EPA's attempt to make substantial changes to 
the construction general permits controlled by delegated State 
programs. EPA is undermining the delegation of the program and 
reverting to command and control regulations by creating general permit 
provisions. States with delegated programs already have the authority 
to write permits to reflect best practices based on specific geologic, 
weather, and hydrologic needs in their State.
    As the construction industry is regulated solely by best management 
practices (BMPs), AGC is concerned about the possible loss of 
flexibility for the States should EPA require more stringent national 
BMPs that are not appropriate in some areas. EPA is also seeking 
comment on the possibility of ``offsetting'' BMPs. Given that offsets 
would be required on the same watershed for the same pollutant, this 
trading program becomes difficult to manage should other construction 
sites not be willing to tradeoff sets. Competitive and economic reasons 
could prevent offsets from being found in the same watershed. Rather 
than seeking offsets from construction sites, owners, developers, and 
construction contractors will have to look for nonregulated entities to 
assist with storm water controls. Rather than offsets, construction 
contractors should focus on adequately maintaining BMPs on a jobsite. 
The construction industry strives to minimize the impact of 
construction operations on local watersheds. This practice will reduce 
or prevent any adverse impacts on a watershed. S. 2417 asks the 
National Academy of Sciences to examine the merits of a trading 
program.
    EPA has reserved the right to object to permit extensions and other 
State controlled aspects of the storm water program. This undermines 
the States' authority to grant and monitor permits. This also increases 
the uncertainty that all the requirements of the permit have been 
completed by the permitee. It also exacerbates what we see as the cause 
of most violations of environmental law, an uncertainty of what is 
necessary to protect the environment and comply with the law.
    Finally, EPA estimated that the proposal would cost $25 million a 
year to administer nationally. States and other groups estimate the 
cost of this program to be well over $100 million. In the original 
proposal, EPA gave States 60 days to inventory watersheds. EPA 
estimated this inventory to be $3 million. Both the time and cost does 
not accurately reflect the cost to the State, making this rule an 
unfunded mandate. S. 2417 recognizes the funding shortfall. The 
legislation authorizes $50 million annually to assist States in the 
collection and preparation of the total maximum daily load rule.
    AGC disagrees with the merits of EPA's TMDL proposal. Mandating 
offsets and creating new permit restrictions without scientific data 
indicating the necessity of the action, creates a complex patchwork of 
regulations that may lead to more citations or create a more cumbersome 
permitting process, but achieve little, if any, environmental--benefit. 
The Water Pollution Program Enhancements Act provides a comprehensive 
study of the scientific data, the costs of implementation, and the 
trading program. The study will suggest alternatives to achieving water 
quality standards. AGC welcomes this independent review and pledges to 
work with the committee and the National Academy of Science to examine 
the TMDL proposal's impact on the construction industry.
            Sincerely,
                                           Loren E. Sweatt,
                                                          Director.
                               __________

                    Statement of Clean Water Network

                            FICTION VS. FACT

The Clean Water Act's Total Maximum Daily Loads Program
    FICTION: The TMDL program requires non-point sources of pollution 
to be permitted.
    FACT: Non-point sources of pollution are NOT required to obtain 
Federal permits. The TMDL program does not allow EPA to require NPDES 
permits, or any other kind of permits, for nonpoint sources of 
pollution such as runoff from agricultural fields. Instead, the power 
of the TMDL program lies in the fact that it requires States to draw 
together all the programs of the Act and coordinate them to clean up 
waters. States develop TMDLs for impaired waters, using watershed 
specific data to determine sources of pollution and a fair way to 
divide up responsibility among polluters for lowering water pollution 
levels.
    The program requires that if a State decides to allocate pollutant 
reductions to a non-point source, there must be a plan put in place to 
assure the reductions will be made. The plans can be made up of 
voluntary programs, State regulatory programs or many other means 
allowed by law. A State could decide to target grant money and staff 
expertise of the Act's 319 program, State Best Management Practices 
(BMPS) programs, and other approaches to reduce pollution, but the TMDL 
program neither authorizes nor requires NPDES permits of non-point 
sources of pollution. Of course, nothing in the Clean Water Act 
prevents States from regulating nonpoint sources activities if they 
choose to do so under State law.
    FICTION: EPA does not have the authority to include non-point 
sources in the TMDL process.
    FACT: The TMDL program has always included pollution from non-point 
sources. Excluding nonpoint sources from the TMDL program would 
guarantee its failure. Surely this is not what Congress intended in 
1972. A TMDL program that doesn't address non-point source pollution 
would be close to meaningless--EPA estimates that of the waters in need 
of TMDLs 47 percent are point source and non-point source combined 
problems, 43 percent are non-point only, and only 10 percent are point 
source only.
    A recent court decision emphatically supported the fact that the 
Clean Water Act requires the TMDL program to address non-point source 
pollution. In Pronsolino vs. Marcus, the United States District Court 
found ``. . . as to whether TMDLs were authorized in the first place 
for all substandard rivers and waters' there is no doubt. They plainly 
were and remain so today--without regard to the sources of pollution.''
    The language of the Clean Water Act supports including nonpoint 
sources of pollution in the TMDL program. Section 303(d) of the Clean 
Water Act requires the identification of waters that would not meet 
water quality standards after the adoption of technology-based NPDES 
permits for point source discharges and requires the development of 
TMDLs for those waters. Clearly, waters polluted or impaired by 
nonpoint sources could not be restored through point source permits and 
thus should be listed and subject to TMDL development and 
implementation. A water either meets water quality standards or it 
doesn't--period. The source of that pollution should be irrelevant 
under section 303(d). In addition existing TMDL regulations developed 
in 1985 specifically provide for inclusion of non-point source 
pollution in TMDLs.
    FICTION: The program is a top-down, Federal approach to water 
quality controls.
    FACT: This could not be farther from the truth. The TMDL program is 
the ultimate locally driven watershed clean up process. First, States 
develop their own water quality standards under the Clean Water Act. 
States then develop lists of waters in need of clean up because they 
are not meeting State water quality standards. States prioritize their 
lists to decide which waters must be cleaned up first. States and 
localities then collect and analyze water quality data, models, and 
other information to decide what is the most efficient way to reduce 
pollution. The EPA only writes TMDLs (or the TMDL lists) if a State 
fails to develop a TMDL or does an inadequate job. This is a legal duty 
under section 303(d) for EPA--Congress held EPA responsible for the 
development of TMDLs where States failed and the courts have held EPA 
to that responsibility.
    FICTION: The program places a huge new burden on the States.
    FACT: The statutory TMDL provisions were included in the original 
Clean Water Act back in 1972. Congress included the TMDL section, 
largely at the request of the States, to serve as a backstop when the 
Act's technology-based programs proved unable to achieve the Act's 
goals of fishable and swimmable waters. The EPA's proposed program 
changes are simply building on the existing regulations--regulations 
that were written during the Reagan Administration.
    While it is true that the TMDL program has largely not been 
adequately implemented in the past, that's no reason why it shouldn't 
be implemented now. In fact, the unfortunate truth is that over 25 
years of inaction has brought us to this point--a time when 20,000 
waterbody segments are in dire need of a TMDL pollution budget. On the 
other hand, the proposed changes do add some specificity to the TMDL 
program--specificity that will lead to some additional resource needs. 
Hence, EPA has requested budget increases for both the TMDL and non-
point source programs in order to increase grants to the States. Some 
States have already stepped forward and committed additional resources 
to the restoration of water quality through the TMDL program.
    FICTION: The TMDL program revisions create a rush to list and 
prepare TMDLs in the face of inadequate data on water quality.
    FACT: While there is a need for better data on water quality, we 
have enough data to take action now. The first step in developing a 
TMDL is to collect additional data within a watershed. This sound 
science strategy allows local officials to refine the definition of the 
water quality problem and to begin the process of identifying pollutant 
loads and sources.
    In addition, recent GAO report found that, while data gaps are a 
problem, the data do serve to identify the country's biggest problems 
and that additional monitoring would likely turn up more problems, not 
less. Specifically, the report found that ``Even though the State 
officials we interviewed are confident that they have identified their 
most serious pollution problems' they nonetheless acknowledge that more 
thorough monitoring would likely reveal additional waters that do not 
meet standards'' (GAO. March 2000).
    FICTION: Existing Best Management Practices are adequate for 
reducing non-point source pollution, therefore silviculture, 
agriculture, and other types of non-point source activities that 
contribute to pollution in an impaired waterway shouldn't be subject to 
TMDL regulations.
    FACT: Where BMPs are demonstrated as successful in restoring and 
maintaining water quality, nothing more would be required for non-point 
sources of pollution under the TMDL program. But let's face it: 
polluted runoff is the largest remaining source of pollution today. 
Forty percent of recently surveyed waters are unfit for fishing, 
swimming, aquatic habitat or other uses and 60 percent of that 
pollution is from non-point sources of pollution. For 28 years, point 
sources of pollution, particularly from sewage treatment plants and 
factories, have been required under the Clean Water Act to reduce their 
pollution through enforceable permits. Federal matching dollars and 
grants helped municipalities reduce their pollution, and private 
industry has been required to reduce pollution before it comes Out of 
their pipes.
    Only voluntary BMPs and the backstop of the TMDL process are 
mentioned in the Clean Water Act for reducing non-point source 
pollution. We provide millions of dollars in grants a year through 
Federal clean water and agricultural programs to help implement BMPs. 
While these programs should be better funded, a TMDL process is the 
fairest and most efficient way to allocate responsibility for reducing 
pollution among all sources of pollution. A TMDL outlines what 
voluntary BMPs need to be in place for non-point sources along with 
other enforceable requirements for point sources. in order for the 
waterbody to meet water quality standards.
    For more information on the TMDL program, contact the Network at 
202-289-2392 or visit our web site at www.cwn.org.
                               __________
                                        State of Louisiana,
                                     Baton Rouge, LA, May 17, 2000.
Brian B. Holoubek,
Senate Committee on Environment and Public Works,
Washington, DC.
    Dear Mr. Holoubek: As requested, I am submitting 100 copies of my 
testimony before the Subcommittee on Fisheries, Wildlife, and Water 
scheduled for Thursday, May 18, 2000. The purpose of the hearing is to 
examine S. 2417, the Water Pollution Program Enhancements Act of 2000. 
I have also included a copy of my testimony on a 3.5 inch disk in a 
WordPerfect file.
    I request that you include into the printed record along with my 
testimony the following attached documents:
    1. Letter dated May 11, 2000, from Mr. Bob Odom, Commissioner of 
the Louisiana Department of Environmental Quality, to Mr. Dale Givens 
providing comments on S. 2417.
    2. Letter dated January 17, 2000, from Mr. William B. Richardson, 
Chancellor of the Louisiana State University Agriculture Center, to 
Comment Clerk, providing comments on the TMDL and NPDES/Water Quality 
Standards Proposed Rules.
    3. Letter and attachment dated January 19, 2000, from Ms. Barbara 
Romanow-
sky, Assistant Administrator of the Louisiana Department of 
Environmental Quality, to Comment Clerk providing comments on the TOOL 
and NPDES/Water Quality Standards Proposed Rules.
    If you have any questions or comments about this submittal, please 
contact me or Marian Mergist at 225/765-0639. Thank you for your help.
            Sincerely,
                                            J. Dale Givens,
                                                         Secretary.

                                 ______
                                 
            Louisiana Department of Agriculture & Forestry,
                                     Baton Rogue, LA, May 11, 2000.
Dale Givens, Secretary,
Department of Environmental Quality,
Baton Rouge, LA.
    Dear Mr. Givens: We have reviewed the Smith-Crapo Bill (S. 2417) 
and believe this would provide very positive measures toward addressing 
our concerns on the current TMDL issues.
    The main principles of the bill represent those by which the Soil 
and Water Conservation Districts, the Department of Agriculture and 
Forestry, and private landowners have operated since the inception of 
the Federal Clean Water Act--that being reliance on voluntary 
incentive-based measures to achieve realistic environmental goals. This 
bill will certainly promote and enhance this ongoing initiative in a 
manner that will achieve the greatest benefits. The emphasis on 
directing funds into nonpoint source activities is much needed and 
certainly will expand the current program to a level much more 
appropriate.
    A few points about specific issues in the bill are as follows:
    (1) The proposed funding to States to expand nonpoint source 
programs is greatly needed. It should also be noted that in this 
overall effort, there must be dedicated funding to achieve more 
technical assistance to private landowners through the USDA/NRCS.
    (2) The mechanics of grants that could allow 90/10 funding and 
especially the liberalized guidelines for providing match have been 
speeded and requested many times and should prove very beneficial in 
our efforts to address nonpoint source water quality problems.
    (3) The provision that would delay the promulgation of the 
impending EPA rules proposed August 23, 1999 will allow for ``sound 
science.'' to be more adequately 
applied after the National Academy of Science study is completed. This 
is quite welcome from the perspective of those private landowners and 
conservation and environmental professionals who have repeatedly asked 
for this to occur. Recent meetings of stakeholders in Arkansas, Texas 
and Louisiana confirmed that the private landowners across the region 
desire and are willing to participate in incentive-based, voluntary 
programs. This bill would add impetus to this effort.
    In summary, this bill could provide the framework to implement 
measures to meet environmental requirements relative to nonpoint 
sources including TMDL requirements in a manner that is acceptable to 
all those involved.
    In relation to the TMDLs, I am providing you a copy of our summary 
of objections to the overall TMDL issue I recently presented to the 
Louisiana Legislature. In reviewing our concerns on the TMDLs it is 
quite obvious that if enacted, this bill would address our concerns.
            Very truly yours,
                                                  Bob Odom,
                                                      Commissioner.

                                 ______
                                 

                   Total Maximum Daily Loads (TMDLs)

          key issues from an agricultural/forestry perspective
     The Clean Water Act is clear that the EPA cannot legally 
force States to regulate nonpoint sources with a permit system since 
the legal definition of a point source specifically excludes 
agricultural runoff. The proposed rule clearly has EPA expanding the 
authority of the CWA to include nonpoint sources of pollution.
     The proposed regulations from the August 23, 1999, Federal 
Register would clearly create new and additional requirements that 
directly and significantly impact all stakeholders including 
agriculture and forestry.
     The proposed regulations would remove many innovative 
options to solving water quality problems currently being implemented 
by agriculture and forestry programs on both local, State and Federal 
lands.
     EPA should recognize the successes of the watershed-based 
voluntary approach under section 319 of the CWA currently in effect and 
seek ways to expand and enhance these and other voluntary and 
incentive-based programs currently in effect.
     For many years, there has existed a partnership of the 
USDA-NRCS, the State conservation agencies, the local Soil and Water 
Conservation Districts and the private landowner to address and 
implement these very effective voluntary, incentive-based programs. 
This should continue to serve as the primary mechanism for addressing 
the TMDL issues. It the Federal Government is going to require private 
landowners and managers to accelerate their efforts to control nonpoint 
sources of pollution, it should direct those efforts at a voluntary 
program that provides technical assistance and incentives rather than a 
strong handed regulatory approach with unrealistic goals.

                                 ______
                                 
                         LSU AgCenter Research & Extension,
                                 Baton Rouge, LA, January 17, 2000.
Comment Clerk, Water Docket (W-98-31/W-99-04)
Environmental Protection Agency,
Washington, DC.
    Re: Comments on TMDL and NPDES/WQS Proposed Rule

    Dear Comment Clerk: Through this letter the Louisiana State 
University Agricultural Center (LSUAC) hereby submits comments on EPA's 
TMDL and NPDES/WQS proposed rules. The LSUAC takes issue with several 
very important aspects of these rules, mainly (1) EPA's decision to 
abandon the highly effective voluntary, incentive-based approach to 
water quality management for agriculture and forestry, (2) EPA's 
unwillingness to allow individual States to develop water quality 
policy that best fits the economic and technological ability of 
producers, (3) EPA's inability to accurately determine the significance 
of ambient nonpoint source pollution contributions within watersheds 
and (4) EPA's inaccurate estimate of the actual producer costs (and 
social benefits) associated with the implementation of the proposed 
rules.
    Specific comments on the proposed TMDL regulations are outlined 
below:
     EPA does not have the congressional authority to require 
specific actions in State TMDL implementation plans as a condition of 
final approval. Section 303(d) of the Clean Water Act (CWA) does not 
provide EPA with any implementation authority. EPA has the 
responsibility to approve the numeric TMDL and States have the 
responsibility to develop and implement measures to achieve State-
established water quality standards.
     Non-point source activities (agriculture and forestry) are 
not required to have TMDLs. EPA is proposing to require States to list 
and prepare TMDLs for waters that are impaired from only non-point 
source activities under Section 303(d). The CWA does not give EPA that 
authority. Waters impaired solely by non-point sources should only be 
listed in a State's Section 319 non-point assessment report.
     Waters currently meeting water quality standards as 
``threatened waters'' should not be required to be listed by States. 
EPA to define ``threatened waters'' as waters where water quality 
standards are currently being met, but there is an expectation that the 
standard will not be met in the next monitoring cycle. There is no 
legal basis in Section 303(d) for listing waters now achieving water 
quality standards.
     Section 303(d) listing for impaired waters should be based 
on accurate pollution monitoring data. EPA is proposing to define 
impaired waters as any water that does not attain water quality 
standards due to an individual pollutant, multiple pollutants or 
pollution from an unknown cause of impairment. Low water flow or 
degraded habitat could be classified as pollution. A decision to 
determine impairment could be based on visual observations or 
monitoring data. An accurate determination of water quality impairment 
in Louisiana cannot possibly occur where there is a lack of sufficient 
data, outdated assessments, incomplete assessments, or no data at all. 
Use of these inaccurate measurements has resulted in a doubling of 
Louisiana's 1998 impairment list to approximately 345 waterbodies 
covering most State watersheds. Only accurately collected monitored 
data for discrete, defined pollutants should be used to determine 
impairment. Visually observed degraded habitat, turbidity, or low 
stream flow should not be classified as pollution.
     The process for listing and de-listing impaired waters 
should have the same criteria. The standards for listing and de-listing 
a watershed under Section 303(d) should be the same. A system that 
requires less documentation and review for a listing than for a de-
listing is scientifically and technically flawed.
     In waters where both point and non-point source activities 
may be causing a 303(d) listing, EPA is proposing that both sources 
share the responsibility of achieving water quality standards. EPA is 
proposing that both point and non-point sources be subjected to an 
allocation of a daily pollutant limitation through a TMDL. This, 
however, is not legally required, scientifically quantifiable/
verifiable, or cost-
effective. Nonpoint source pollution would be best addressed through 
the implementation of research-based Best Management Practices (BMPs) 
while point source pollutants are managed through the existing NPDES 
program and State developed TMDLs. The implementation of BMPs through 
voluntary, incentive-based mechanisms should be ruled as the functional 
equivalent of TMDLs for nonpoint pollution sources.
     States will be burdened with large unfunded mandates if 
they are forced to implement EPA's proposed TMDL regulations. EPA has 
not accurately determined the financial burden placed upon States and 
agricultural/forestry producers to develop and implement TMDLs as 
proposed. Additionally, EPA has not been able to accurately estimate 
the real benefits of meeting potentially un-achievable standards. Some 
economists are predicting that development and implementation costs (to 
States and producers) could realistically be in the billions of 
dollars.
     Many agricultural dominated waterways in Louisiana have 
been significantly modified to directly meet the needs of crop 
production (i.e., irrigation, drainage, etc.)--in these cases crop 
production should be the primary use. It may be prudent to develop a 
specific agriculture use designation/hat allows for continued, historic 
economic activity within such watersheds with reduced emphasis on other 
uses (swimming, fishing, etc.).
    Specific comments on the proposed NPDES/WQS rule are outlined 
below:
     Animal feeding operations, aquatic animal production 
facilities, and certain silviculture management activities (all 
historically classified as non-point sources) should not be subjected 
to the NPDES permitting program. The proposed reclassification of these 
historically exempt activities as point sources (and thus requiring 
NPDES permits) reverses a 27 year determination under the CWA that 
these activities are ``non-point'' sources. There is no legal or 
statutory authority for EPA to 
develop these regulations. Congress clearly intended for these land 
uses to not be regulated through the NPDES program. EPA's authority to 
arbitrarily designate certain animal feeding operations (aquatic and 
terrestrial) as point sources (requiring NPDES permits) regardless of 
the number of animal units being produced is technically unsound and 
economically unreasonable. States have and should maintain the 
authority and responsibility to identify and address nonpoint sources 
of pollution under other sections of the Clean Water Act.
     Restrictive NPDES permit conditions may lead to economic 
disaster in rural communities. NPDES permit conditions will require 
offsets (reductions) of up to 1.5 times the proposed discharge from any 
new or expanding point source activity in an impaired watershed where a 
TMDL has been established. If the 1.5 point source offset cannot be 
achieved, business expansion within a watershed may not be allowed, 
virtually stopping all new economic development. States must be given 
the authority and flexibility to consider offsets on a case-by-case 
basis considering technical and economic feasibility and environmental 
and human health benefit.
    In conclusion, it is our opinion that these proposed rules be 
suspended until an independent, in-depth cost/benefit analysis can be 
conducted, and a clear justification is delineated for increased 
regulation covering agriculture, ranching, aquaculture and forestry 
activities in Louisiana. Additionally, we feel that much more research-
based data should be collected regarding the contributions of 
pollutants from undisturbed areas and the ability of a watershed to 
meet specific water quality standards with current economic activity in 
place. A very serious farm financial crisis has burdened agricultural 
producers over the past 2-3 years. The increased burden of un-warranted 
environmental regulation will no doubt result in financial ruin for 
many Louisiana farmers and ranchers. This will spin-off into 
accelerated economic decline in many rural Louisiana communities with 
little potential for economic diversification at this time.
    It would be advisable for EPA to enhance education and outreach 
activities, and encourage voluntary, incentive-based water quality 
policy in Louisiana covering agriculture and forestry activities. BMP 
development and voluntary adoption has been very successful in 
Louisiana, and the continuation of this effective approach is highly 
encouraged in lieu of new regulations.
            Sincerely,
                          William B. Richardson, Chancellor
                                 and Chalkley Family Endowed Chair.
                                 ______
                                 
                                        State of Louisiana,
                                 Baton Rouge, LA, January 19, 2000.
Comment Clerk for the TMDL Program Rule Water Docket (W-98-31)
Environmental Protection Agency,
Washington, DC.
    Re: Comments on (1) the Proposed Revisions to 40 CFR Part 130 the 
Water Quality Planning and Management Regulation (W-98-31); and (2) the 
Revisions to the NPDES Program & Federal Antidegradation Policy 40 CFR 
Part 122 et. al. (W-99-04)

    Dear Sirs: The Louisiana Department of Environmental Quality (LDEQ) 
has reviewed EPA's proposed regulations (listed above) very carefully 
and offers the attached comments for consideration and EPA response. In 
addition, please consider the issues discussed within this cover letter 
as part of LDEQ's comments.
    The State of Louisiana has been actively protecting and restoring 
its waters for over 30 years, and has continually supported the goals 
of the Clean Water Act (CWA). The CWA gave States the lead role in the 
development and implementation of water quality programs; therefore, 
these proposed regulations will have a direct impact on Louisiana's 
TMDL program. The LDEQ feels very strongly that the EPA should 
carefully consider the new and overly burdensome directions that these 
proposed regulations would focus both State and Federal resources and 
goals if finalized without major revisions. In order to do more than 
provide EPA with our concerns and questions regarding these proposed 
regulations, LDEQ would have to start at the beginning and completely 
rewrite the proposed regulations offering alternative language with a 
more detailed and constructive objective. There is simply insufficient 
time to begin such a project. The following bullets summarize some of 
the significant concerns that LDEQ has with the two sets of proposed 
regulations:
     The proposed regulations broadly expand the Federal role 
beyond the authority outlined within the Clean Water Act. LDEQ cannot 
support such unlegislated ``mission creep'' that significantly expands 
the authority of the EPA above and beyond what is currently in the CWA 
or the Federal regulations that support the CWA. It is imperative that 
States' lead role in the nation's Clean Water Programs, as envisioned 
and mandated by Congress, must be maintained and reinforced with any 
new regulations. The proposed regulations, however, are written with 
the specific goal of cementing EPA's command and control position over 
all development and implementation of TMDLs. EPA's goal with these 
proposed regulations seriously jeopardizes the partnership relationship 
that EPA has promoted with the States for years. States are and should 
be considered by EPA as full partners in the management, protection, 
and restoration of water resources. Sadly, with these proposed 
regulations, EPA has missed a unique opportunity to revise the current 
outdated TMDL regulations and establish a realistic choice of 
consistent mechanisms that States may utilize to successfully implement 
the first round of TMDLs. Instead, with these proposed regulations EPA 
turns the currently complicated and imperfect TMDL initiative into a 
controversial and litigious proposal that many State governments are 
understandably reluctant to endorse.
     The proposed regulations are far too prescriptive, and 
would force States to manage multiple water quality programs through 
the new mandates and expanded authorities of the revised Section 303 of 
the CWA. The proposed regulations ignore and effectively remove the 
flexibility required by States to achieve intended environmental 
outcomes and promote functionally equivalent approaches. The proposed 
regulations should have allowed States to be innovative in their 
approaches to managing State waters, and encouraged and empowered 
States to utilize existing programs to carry out water quality 
objectives wherever possible. The proposed regulations instead add 
overly burdensome and unnecessary new layers to existing programs. In 
addition, the more moderate language of the preamble is inconsistent 
with the rigid positions and mandates of the proposed regulations, and 
undermines the public's ability to provide EPA with constructive 
comments concerning these proposed regulations.
     The proposed regulations are obviously aimed at expanding 
the requirements of CWA Section 303 to more easily provide EPA with the 
authority to assume control of LDEQ's development and implementation of 
TMDLs and all other programs that Section 303 impacts. LDEQ believes 
that EPA does not have statutory authority for establishing the 
nonpoint source pollution control requirements in these proposed 
regulations, nor does EPA have any clear congressional mandates to 
provide for the regulatory implementation of nonpoint source controls. 
The iterative approach to solving problems, with stakeholder 
involvement, has been and will continue to be crucial to successful 
water quality management, particularly for nonpoint sources. Point and 
nonpoint sources should be dealt with equitably, in a manner that is 
sensitive to their different characteristics. For example, EPA's 
position on silviculture in the proposed regulations ignores the 
already successful implementation of water quality-based forestry BMPs 
demonstrated not only within Louisiana forests but in other State 
forests as well. A national, ``one-approach-fits-all,'' strategy for 
the development and implementation of TMDLs within each State is 
inappropriate and counterproductive. EPA should not have ignored in its 
proposed regulations the effective programs of the past and present 
(both point source and nonpoint source related), supported with years 
of Federal grants funding and State moneys, that relied heavily and 
successfully upon incentive-based and voluntary efforts among 
stakeholders.
     EPA maintains that the proposed regulations carry forth 
the status quo. On the contrary, these two proposed regulations add new 
requirements that will directly and significantly impact many entities, 
whether small or large, existing or new, public or private. It was 
improper for EPA to offer these proposed regulations as two independent 
actions, then address economic impacts separately, thereby diluting the 
apparent fiscal impact of the regulations. As a result, EPA has not 
accurately depicted the additional costs to State, local, and Federal 
Governmental agencies, private entities, and small businesses that 
these two proposed regulations will require. These proposals are indeed 
``significant regulatory actions,'' even if the economic impact is 
limited to only those incremental costs that will occur as a result of 
these two proposals. For example, the proposed language:
    (1) adds the new requirement that TMDL implementation plans be 
submitted as part of an approvable TMDL,
    (2) expands the current definition of pollutants to include 
contaminants regulated under the Safe Drinking Water Act and sets into 
motion regulatory consequences to address a waterbody that may, in 
fact, show no use impairment, and
    (3) adds new terminology that is ambiguous and poorly developed and 
easily susceptible to subjective interpretation that results in 
arbitrary and costly decisions.
    Even though EPA presents these proposed regulations as ``not 
significant regulatory actions,'' EPA must nevertheless be willing to 
pursue additional funding 
increases to ensure the success of any final regulations and not rely 
on simply imposing unfunded mandates that must be paid for at the 
expense of other State programs. EPA must honestly examine their water 
program goals as a whole as well as these two proposed regulations in 
their totality, and properly acknowledge the true costs associated with 
all program elements. Only then can EPA accurately account for the 
economic impact of these two proposed rules.
    The LDEQ encourages EPA not to rush these two proposed regulations 
to finalization before meticulously considering all comments received. 
The regulations should be drafted to acknowledge, accommodate, and 
promote the diverse approaches that can be and have been utilized and 
successfully implemented among States for the attainment of water 
quality standards. All States need to be able to set their own 
priorities as envisioned by the U.S. Constitution, establish realistic 
schedules, develop and pursue innovative solutions, and develop and 
implement incentive-based and voluntary efforts in managing water 
quality.
    Please do not hesitate to contact me if you have any questions 
about the information or comments contained within this cover letter or 
the attachment. LDEQ appreciates the opportunity to work in partnership 
with EPA as part of our commitment to protecting and enhancing 
Louisiana's remarkable aquatic resources.
            Sincerely,
               Barbara Romanowsky, Assistant Administrator,
                     Louisiana Department of Environmental Quality.
                                 ______
                                 

 Comments of the Louisiana Department of Environmental Quality on the 
                 Proposed Revisions to 40 CFR Part 130

                        comments on definitions
Sec. 130.2(d)--Pollutant
     EPA is proposing to clarify the definition of pollutant to 
encompass drinking water contaminants that are regulated under Section 
1412 of the Safe Drinking Water Act (SDWA) and that may be discharged 
to waters of the U.S. that are source waters of one or more public 
water systems. For public water systems served by surface water, EPA 
proposes that source water is any water reaching the intake. Has EPA 
determined the incremental costs associated with expanding the current 
definition of pollutant?
     LDEQ believes that by changing the definition of pollutant 
to encompass drinking water contaminants that are regulated under 
Section 1412 of the SDWA, the list of contaminants for waterbodies 
designated as drinking water sources that the State must address is 
increased significantly. There are 44 contaminants with a primary 
drinking water standard for which LDEQ does not have a water quality 
standard. There are 11 secondary drinking water standards with an MCL 
for which LDEQ does not have a standard. It is important to note that 
drinking water standards apply to treated drinking water, and LDEQ's 
water quality standards apply to source water-specifically surface 
water. LDEQ monitors and assesses source waters and the Louisiana 
Department of Health and Hospitals (DHH) applies the MCL standards to 
finished (treated) water.
     There are no national criteria for many of the compounds 
listed in the SDWA. Additionally, LDEQ does not test for many of the 
parameters indicated by the SDWA. There would be a tremendous cost 
added if LDEQ were to do so. Did EPA address this issue of monitoring 
for all ``potential contaminants'' in their cost analyses?
     With regard to source water being any water in the 
watershed reaching the intake, if the pollutant is 
discharged at great distances above a river intake, natural attenuation 
and dilution should alleviate concern. Although the Louisiana SWAP is 
delineating the entire watershed capable of feeding an intake, the 
actual on-the-ground inventory for potential sources of contamination 
(PSOCs) is 5 miles upstream from the intake and 1000 feet to either 
side of the stream. Beyond this, only a data base search for PSOCs is 
done for the contributing watershed. The reliability of these data 
bases is unknown. Furthermore, Source Water Assessments are potential 
sources of contamination, not sources of contamination. To consider 
PSOCs alone as a basis for listing a waterbody as impaired or 
threatened is overkill. Why has EPA chosen to expand the scope of the 
current listing language by requiring the use of flawed ``new 
criteria'' with which to assess raw water sources prior to treatment?
Sec. 130.2(f)--Load Allocation
     The definition of Load Allocation was changed (shortened), 
removing provisions allowing for ``best estimates of the loading, which 
may range from reasonably accurate estimates to gross allotments . . 
.'' The definition is also changed from ``The portion of a receiving 
water's loading capacity that is attributed to . . .'' to ``The 
portions of a TMDL's pollutant load allocated to . . .'' These changes 
lead to a possible interpretation that load allocations can be very 
precisely determined in the context of a TMDL model. Load allocations 
from nonpoint sources and natural background are rarely known 
precisely. This new definition will allow EPA to require more specific 
and therefore more costly estimates for load allocations. Is this 
incremental cost associated with changing the current definition of 
load allocation considered in EPA's cost analyses?
Sec. 130.2(h)--Total Maximum Daily Load
    The definition of TMDL inappropriately expands the language of the 
CWA and the current regulatory definition.
     Sec. 130.2(h)(9) requires that the TMDL must contain ``An 
allowance for future growth which accounts for reasonably foreseeable 
increases in pollutant loads''. EPA requires it as part of a TMDL but 
offers no clue as to how to develop such allowance. Is EPA prepared and 
capable of providing such an estimate?
     The proposed definition of TMDL is not appropriate and is 
dated. It is written to fill in the EPA's perceived gaps in the present 
definition. EPA in this new definition of a TMDL is attempting to 
address all of the issues that have been raised in the recent years 
through lawsuits. A TMDL is not a plan. A TMDL is an estimate of the 
pollutant load that a waterbody can assimilate without exceeding the 
established water quality standard for that pollutant. TMDLs are 
developed through a mathematical analysis of pollutant loads (both 
point source discharges and nonpoint source), in-stream water quality, 
and stream hydrology.
     The proposed expanded definition of TMDL places a new 
mandate upon the States to develop a detailed implementation plan along 
with the TMDL. Development of the required TMDLs will expend all of the 
State's resources. The State does not have sufficient staff or 
resources to develop an implementation plan for each and every TMDL as 
described in the proposed regulations timely enough to meet the 
schedule that the Federal court has ordered EPA to implement in 
Louisiana.
     This expanded definition also requires that a TMDL include 
both a margin of safety and an allowance for growth. This adds to an 
already large conservative buffer built into every TMDL which presumes 
a level of uncertainty due to assumptions that are made in the 
analysis. This requirement is also inconsistent with the Clean Water 
Act Section 303(d)(1)(C), which specifies that the TMDL should include 
a margin of safety and take into account seasonal variations. There is 
no mention of inclusion of a growth factor.
Sec. 130.2(n)--Threatened Waterbody
     Threatened waterbodies are not considered in the CWA. 
Sec. 303(d)(1)(A) specifically States, ``. . . effluent limitations 
required . . . not stringent enough to implement any water quality 
standard applicable to such waters.'' (CWA Sec. 303(d)(1)(A)). 
Inclusion of threatened waterbodies on the 303(d) list is not 
consistent with the CWA. By EPA's own definition, a threatened 
waterbody ``currently attains water quality standards . . .'' (Proposed 
40CFRSec. 130.1(n)). It is recognized that threatened waterbodies 
should be monitored closely to prevent further degradation and promote 
improvement, however, threatened waterbodies should not be considered 
on the Sec. 303(d) list [as proposed in Sections 130.25 (a) and 
130.25(b)(1-3)] because they ``currently attain water quality 
standards.''
     The proposed definition of threatened waterbody is flawed 
in that it assumes that a declining trend will continue to the point of 
a standards exceedence There is no way to predict that this will be the 
case for any given body of water. The Clean Water Act does not define 
threatened waterbody nor does it require that threatened waterbodies be 
identified for purposes of TMDL development.
Sec. 130.2(p)--Reasonable Assurance
     Reasonable assurance is defined for nonpoint sources as 
State regulations or local ordinances. LDEQ cannot assure that local 
governments will pass ordinances to require management measures for 
nonpoint source controls. Nor can LDEQ assure that any new State laws 
or regulations will be passed. In the case of nonpoint sources, LDEQ 
will continue to first pursue a nonregulatory, voluntary approach to 
implementing TMDLs rather than pursue legislation now that would 
require farmers to implement management measures on their land.
     On Page 46016: Column 3: Paragraph 2 EPA is proposing a 
definition of ``reasonable assurance'' in 130.2(p) as a demonstration 
that wasteload allocations and/or load allocations in a TMDL will be 
implemented. EPA proposes that each TMDL contain reasonable assurance 
that allocations contained in the TMDL will in fact be implemented to 
attain and maintain water quality standards. There is need for more 
clarification as to what would constitute reasonable assurance that a 
TMDL would be implemented. If the State outlines within the UPS 
Management Plan a step-by-step process that it will follow in the 
implementation of the TMDL at the watershed level, does that not 
constitute a reasonable assurance? What would be considered as 
``expeditiously implemented''? Would the State have the latitude to 
utilize all of the cost-share, technical assistance and educational 
tools available to ensure implementation of best management practices 
(BMPs) before it required that those BMPs be implemented through a 
regulatory mechanism? Who would decide the timeline . . . the State or 
EPA?
                            general comments
     Both rules are silent on the issue of antibacksliding. 
This has been a significant problem in some cases after the 
establishment of correct standards and/or a TMDL. If the existing 
permit limits are more stringent than necessary for either case, it has 
been extremely difficult in the past to implement less stringent 
limits. The proposed rule apparently continues an unwarranted economic 
hardship on NPDES permit holders.
     Taken as a whole, the proposed requirements are so 
strenuous that it appears that EPA wants to develop and implement all 
TMDLs and issue all permits themselves. Does EPA intend to follow their 
own regulations? If a State is unable or elects not to develop and/or 
implement TMDLs, where in the proposed regulations is language that 
forces EPA to develop and implement TMDLs (including issuing permits) 
following the same requirements that States will have to follow?
     Given the new requirements for listing, when does the 2-, 
4-, or 5-year time clock begin after promulgation of the final 
standards?
     If the waters must remain listed until standards are 
achieved, the waters relying on NPS BMPs to achieve standards may be on 
the list for decades. Some BMPs will undoubtedly require in excess of 
20 years to show effectiveness. Where in the proposed regulations does 
EPA acknowledge this reality and provide reasonable mechanisms to 
address it (besides an enforcement mechanism)?
     It appears that EPA is trying to encourage the development 
of ``non-mathematical'' TMDLs with the new definition, but they fail to 
follow through with that option in the proposed language of the 10 
elements. If EPA does intend to acknowledge ``non-mathematical'' TMDLs 
then the proposed definition must be revised. Does EPA intend to accept 
``non-mathematical'' TMDLs?
     Incorporation of reasonable assurance requirements for 
TMDL implementation will undoubtedly slow down the rate of TMDL 
development. Has EPA performed an economic impact analysis for this 
additional requirement? Even if EPA succeeds in getting a 5-year cycle, 
the negotiations/agreements with NPSs which would be required in 
Louisiana would be hard to achieve and show progress in that timeframe. 
Is there language in the proposed regulations that acknowledges this 
reality?
     Threatened waters need to be removed from the 303(d) list 
and, if listed at all, handled as a first priority under 303(e). Where 
in the Clean Water Act does it require development of a TMDL for a 
waterbody that is currently meeting its uses (threatened waters)?
     The issue of ``unknown causes'' should also be treated 
separately and not made a part of the 303(d) listing. It is 
unreasonable to assume that the cause can be identified and the TMDL 
developed within one listing cycle. How does EPA expect to implement a 
TMDL when it has not yet identified the cause of impairment?
     The issue of natural conditions and incorrect standards is 
ignored by EPA in the proposed 4-part listing system. What mechanism 
can predict that water quality standards will be achieved in the future 
besides a TMDL?
     The issue of ranking the waterbodies and scheduling TMDLs 
continues to be in conflict. The proposed requirement ignores the 
watershed approach, which EPA has been touting for years. States are 
still required to assess and list all impaired and threatened waters. 
States are still required to prepare TMDLs for all those listed in Part 
1 (which will probably be the majority of the waters). If Louisiana 
uses the basin approach and EPA succeeds in getting the 5 year cycle, 
Louisiana will be assessing all the waters within the cycle, but will 
still not be able to develop TMDLs on all waters in Part 1 during the 
cycle. How does EPA intend to accommodate the ``disconnect'' in the 
proposed regulations between encouraging a watershed approach and still 
providing for adequate time for States to develop scientifically 
credible TMDLs that have a realistic chance at successful 
implementation?
     130.33(b)(5) of the proposed TMDL regulations (wasteload 
allocations) has been expanded in such a way that development and 
implementation of Dissolved Oxygen TMDLs will become even more complex 
than they are currently. Even with the authorization to consider some 
loads as part of background conditions, it will be difficult to avoid 
modeling every stream and every point source discharger in the 
watershed. Without modeling, there will be no way to show that those 
individual point sources included in background do not need to be 
reduced in order to maintain/achieve standards. Did EPA intend to 
predetermine the scope of TMDLs by drafting regulations that attempt to 
address all scenarios? EPA needs to be less prescriptive in their 
proposed regulations and acknowledge the probability that each TMDL 
will present enough unique considerations that such in-depth 
regulations are inappropriate. Has EPA considered removing much of the 
detail in these regulations and presenting it as guidance that can be 
tested and fine-tuned over the next few years to see if it works? EPA 
may regret finalizing such inflexible regulations if, in the end, they 
are required to develop and implement some of the more difficult TMDLs 
themselves. Will EPA be required to adhere to their own regulations?
    Where in the proposed regulations is that stated?
     130.33(b)(6) of the proposed TMDL regulations (load 
allocations) presents similar problems for Dissolved Oxygen TMDLs in 
the case of nonpoint sources which may be included in background loads. 
Where in the proposed regulation is there language that acknowledges 
the difficulty in addressing nonpoint sources within the background 
loading?
     Presently, there are many unknowns associated with 
developing and implementing thermal TMDLs. The impact of this 
requirement could result in cooling tower requirements and end-of-pipe 
compliance for facilities subject to the requirement. Has EPA performed 
an economic impact analysis for this requirement? Louisiana does not 
believe that the cost estimates provided by EPA take this issue into 
consideration.
     After EPA approval, States are required to incorporate the 
TMDL into the water quality management plan. Does this mean that we 
will now have to have a second public process following approval?
     What Federal regulation gives EPA the authority to require 
States to adopt EPA derived TMDLs?
                      comments on 40 cfr part 130
Sec. 130.11
     EPA states that with regard to reporting information to 
the public through the section 305(b) report, site specific monitoring 
efforts will be reviewed as well as source water assessments conducted 
under the Safe Drinking Water Act (SDWA).
     Furthermore, water quality problems identified in the 
305(b) reports are to be ``emphasized and reflected'' in the source 
water assessments for all waterbodies where designated uses include 
public water supply.
     An EPA headquarters representative that oversees the SWAP 
has indicated to Louisiana that reporting would be through the Wellhead 
Protection Program biennial report. If the SWAP assessments are 
considered site specific monitoring relative to the 305(b) report, it 
would only duplicate the information found in the Wellhead Protection 
Program biennial report.
Sec. 130.22
     EPA is proposing at 130.22(b)(4) to include the results of 
source water assessments conducted under section 1453 of the SDWA as 
``existing and readily available data'' which States must consider in 
deciding whether to list a waterbody as impaired or threatened. EPA 
states that a national primary drinking water regulation (NPDWR) is the 
SDWA's term for drinking water safety standards which are typically 
established as maximum contaminant levels (MCLs). Drinking water safety 
standards provide reference points (a) against which States can compare 
water quality monitoring data, or (b) that States can use to add or 
revise water quality criteria to support public water supply use in the 
absence of more stringent criteria that support more sensitive 
ecological uses.
    Louisiana believes that Source Water Assessments are potential 
sources of contamination, not sources of contamination. If sources of 
contamination are found during the field assessments, they are reported 
to the proper agency for investigation immediately. Essentially, what 
is reported to the public are the PSOCs for community monitoring and 
State monitoring, if regulated. The PSOCs may never be released to the 
environment, but do bear watching. Therefore, to consider PSOCs alone 
as a basis for listing a waterbody as impaired or threatened is 
inappropriate since there is no data to show a use is impaired.
     EPA states that if the listing is based on a designated 
use but the State has not adopted a water quality criterion for the 
pollutant(s) of concern, either in support of public water use or in 
support of a more stringent use (e.g. aquatic habitat), the State 
should use a reference point sufficiently below the drinking water 
safety standard (MCL) to prevent excursions above the safety standard 
at the source water intake as its starting point for developing a TMDL.
    EPA's statement assumes the public is drinking untreated water. The 
MCL standard is for water that has been treated and about to go through 
the distribution system to the water tap for drinking. All surface 
water that is a drinking water source in Louisiana requires treatment. 
EPA's proposal is too stringent to be used as a starting point for 
developing a TMDL for a waterbody designated as a public water supply. 
How does EPA intend to establish a reference point ``sufficiently below 
the MCL'' to ensure that there are no excursions above the safety 
standard at the source water intake? Does EPA intend to design a 
protocol for development of such a reference point or will each State 
design and defend their own unique reference points?
    Why can't EPA use the statewide susceptibility analysis being 
developed by the Source Water Assessment Program for the surface water 
public supply systems (which will be completed by May 6, 2003) during 
the development of TMDLs rather than a listing of the drinking water 
source assessments?
Sec. 130.23
     This section will significantly increases the time LDEQ to 
assess water quality conditions. This section requires the State to 
prepare a detailed description of its methodology for evaluating and 
ranking waterbodies for 303(d) listing. In addition, it requires LDEQ 
to allow at least 60 days for public review and comment on the 
methodology and to submit to EPA a summary of comments and State 
responses to the comments. This process has to be repeated every 2-5 
years. After LDEQ prepares and submits its methodology, does EPA intend 
to review the methodology and provide comments back to the State before 
a new list is developed by LDEQ utilizing the new methodology? If LDEQ 
receives no comments from EPA concerning its new methodology, does that 
mean EPA finds the methodology acceptable?
     While the new regulations do not require EPA approval of 
the methodology, it provides EPA with a basis for disapproval of the 
State's 303(d) list. By that point, LDEQ will have put a great deal of 
resources and time into preparing both the methodology and the new 
303(d) list. EPA's proposal works against the timely development of a 
303(d) list. The proposed regulations would have EPA essentially 
waiting until the end of months of work on the part of the State and 
only then alerting LDEQ to some problem EPA has with the State's 
listing methodology. This could mean that a State would have to start 
from the beginning, revise its methodology and then develop a new list. 
How can EPA justify and promote such an inefficient process? This 
process would leave LDEQ vulnerable to months of ``negotiation'' with 
EPA over a 303(d) list produced using a methodology (developed months 
before the list) that EPA has now decided is unacceptable. What 
prevents this scenario from happening? In fact, it is quite likely to 
occur. Does EPA intend to prepare a methodology for insuring that EPA 
disapproval associated with the States listing methodology is based on 
a consistent and equitable national evaluation of the diverse 
methodologies among the States? If not, how can EPA prevent arbitrary 
and capricious evaluations of such diverse methodologies and the 
eventual approval/disapproval of States' lists?
Sec. 130.27(a)
     The proposed regulation specifies what the Sec. 303(d) 
list must include. This is inconsistent with the CWA. The CWA clearly 
specifies that ``Each State shall identify those waters within its 
boundaries for which the effluent limitations required by mare not 
stringent enough to implement any water quality standard applicable to 
such waters.'' It does not allow EPA to tell States what waterbodies 
are to be included, other than those waterbodies specified as not 
meeting water quality standards. As mentioned in EPA's definition of 
``threatened waterbodies'' Sec. 130.1(n) a threatened waterbody 
``currently attains water quality standards . . .'' (Proposed 
40CFRSec. 130.1(n)). How does EPA intend to justify this obvious 
inconsistency with the CWA?
     There needs to be some provision for de-listing 
waterbodies that are found to be not meeting a standard due to natural 
conditions, even after implementation of water-quality based controls 
and management measures. These proposed regulations presume that the 
existing water quality criteria are appropriately set, but in many 
cases, the criteria are not appropriate for a particular waterbody 
because they are based on national data. This is the case with the 
dissolved oxygen criterion in Louisiana. EPA has indicated that 
Louisiana should pursue a change in the dissolved oxygen criterion 
including the option of revising the designated uses of many of these 
streams. The process currently available to make such changes is time 
consuming and legitimately can require the collection of several years 
of field data to appropriately document and verify the true criterion. 
And this process has historically been done one waterbody at a time. In 
such cases, the State will be in a position of having to continually 
re-list waterbodies that fail to meet an inappropriate standard. Prior 
to final verification of the real criterion and then reassessing the 
waterbody to evaluate attainment, the State will be forced to implement 
more costly controls and more stringent permit limits in order to meet 
a standard that is naturally non-attainable. How can EPA justify such a 
waste of resources without any measurable improvement in water quality?
Sec. 130.27(a)(1)
     The proposed regulations specify that impaired and 
threatened waterbodies are to be on Part I of the list. By forcing 
States to place a waterbody on Part 1 or some other part of the list, 
EPA is attempting to set Sec. 303(d) priorities. The CWA clearly 
specifies that ``The State shall establish a priority ranking for such 
waters . . .'' (CWA Sec. 303(d)(1)(A)) It does not allow EPA to set the 
priority ranking, only approve or disapprove the list. Also, if EPA 
does not approve the list they ``shall not later than 30 days after . . 
. disapproval identify such waters in such State and establish such 
loads for such waters as he determines necessary to implement the water 
quality standards . . .'' (CWA Sec. 303(d)(2)) Congress clearly 
intended EPA to either approve or disapprove the Sec. 303(d) list. If 
EPA disapproves a list they are required (CWA says shall) to create the 
list and the TMDLs themselves; not ask States to redo the list. LDEQ is 
certainly aware that this default scenario is unworkable for both EPA 
and the State of Louisiana. However, it would seem that this scenario 
would definitely motivate EPA to fine tune the current 303(d) listing 
and TMDL regulations to simplify and promote the expeditious 
development of TMDLs. EPA's proposed regulations do not accomplish 
those goals.
Sec. 130.27(a)(2-4)
     Establishment of Parts 2-4 by the proposed regulation 
again places EPA in the position of establishing priorities, when this 
power was clearly given to the States in the CWA. Further, the CWA 
makes no mention of Parts 1-4. It only specifies that ``The State shall 
establish a priority ranking . . .'' (CWA Sec. 303(d)(1)(A)). (See 
previous comments on the language of the CWA.) LDEQ feels strongly that 
EPA is attempting to alter the language and intent of the CWA through 
the regulatory process rather than revising the statute through 
Congress.
Sec. 130.28
    Specifying how States are to establish priorities, ``How do you 
prioritize the waterbodies on Part 1 of your list?'' (Proposed 40 CFR 
Sec. 130.28), clearly oversteps EPA's power under the CWA. As already 
mentioned above, the CWA clearly specifies that ``The State shall 
establish a priority ranking for such waters . . .'' (CWA 
Sec. 303(d)(1)(A)). Under the CWA, EPA can only approve or disapprove 
the list. It cannot specify what waterbodies are to be present, or 
prioritize the list in any way.
Sec. 130.33
     The requirement for allowance for future growth is not 
necessary. There are already enough conservative assumptions in the 
water quality models that can add as much as 40-50 percent to the 
margin of safety, resulting in a conservative buffer in favor of the 
water quality. Also, a future growth requirement is not specified in 
the Clean Water Act. A margin of safety and consideration of seasonal 
variation, however, are required in the CWA. The additional 
requirements, such as allowance for future growth, that EPA has 
proposed in the regulations only add more confusion to an already 
difficult process and misrepresent the current processes now utilized 
to develop TMDLs.
     Development of an implementation plan as part of a TMDL is 
not required by Section 303 of the CWA. In fact, all of Section 303 is 
aimed at implementing point source controls; there is no mention made 
of nonpoint source controls. The proposed requirement for detailed 
implementation plans places added strain upon a State's resources. 
Development of plans that include identification of funding sources and 
costs of implementing management measures requires time and specialized 
personnel. Can EPA provide the States with this type of information? If 
the States fail to submit this information, is EPA prepared to produce 
this information in their TMDLs?
     The requirement to include an implementation plan as part 
of the TMDL will substantially slow down the rate of TMDL development. 
Has EPA performed an economic impact analysis for this additional 
requirement? In Louisiana, where low dissolved oxygen is the primary 
impairment, successful implementation will depend heavily on the BMPs 
utilized by nonpoint sources. Through the State's policy for sanitary 
dischargers, many existing point sources have already met advanced 
treatment levels to achieve dissolved oxygen standards. There needs to 
be a balance between the controls placed on point and nonpoint sources 
which can only be achieved at the community level. The watershed 
community surely has the right to decide how they will pay for clean 
waters. The TMDL can provide implementation goals, but the community 
should decide how they will achieve those goals. In many cases, LDEQ 
expects that implementation of BMPs will change the water quality so 
significantly, that the water chemistry and hydraulics which were the 
basis for the original TMDL will no longer be valid. In these cases, 
the original TMDLs and the point source controls that those TMDLs 
forced upon the regulated community may well have been more than was 
necessary to achieve water quality standards.
     It does not seem feasible for the TMDL submittal to 
require an implementation plan as one component that would have to be 
approved by EPA. The implementation plan seems redundant to the 
planning process that the States outlined within the upgraded NPS 
Management Plan. This plan included the 9 key elements that EPA felt 
were essential for a State program to demonstrate its effectiveness in 
meeting its short-term and long-term water quality goals (i.e. water 
quality standards). If EPA concurs with the State's NPS Management 
Plan, this should constitute reasonable assurance that the State has 
committed to address the load allocation portion of the TMDL. The 
States are also required to submit Watershed Restoration Action 
Strategies (WRAS) for watersheds that they prioritize to restore to 
their designated uses and water quality standards. The WRAS should 
suffice for the TMDL implementation plan. The redundancy of planning 
documents prevents the State from actually implementing the plan 
because of the time involved in creating more planning documents. Why 
can't EPA accept the upgraded NPS Management Plan and the WRAS as the 
``reasonable assurance'' that the State intends to implement the load 
allocation portion of the TMDL?
     The requirement for demonstration that the control actions 
or management measures are expected to achieve the TMDL is redundant. 
Doesn't the TMDL model and report demonstrate that the recommended 
loads will meet the standard?
     These proposed regulations require a description of a 
process to revise TMDLs if the projected milestones for meeting 
standards are not being met and if progress toward meeting standards is 
not demonstrated. LDEQ is committed to a court-ordered schedule that 
incorporates a watershed approach to develop and implement TMDLs. The 
State does not have sufficient resources to revisit completed TMDLs 
during the first round of TMDL development and implementation and still 
meet the deadlines in the current schedule. These proposed regulations 
also give EPA the authority to determine what is sufficient progress. 
How does EPA intend to judge ``sufficient progress''? In the event that 
EPA develops and implements TMDLs for the State, is EPA prepared to 
defend ``sufficient progress'' to the State?
     Sec. 130.33(b)(6) clarifies that the load allocations may, 
if possible, contain allocations to categories, subcategories, or 
individual sources while emphasizing EPA's intent to require 
establishment of TMDLs where sufficient information is not available to 
allocate loads to individual nonpoint sources.
     Do the proposed regulations now require that for a TMDL 
within a watershed, the load allocation be made for specific land-use 
categories (i.e. agriculture, forestry, urban storm water runoff)? 
Complex watershed models with extensive pollutant loading and soil and 
land-use information are required to determine this type of load 
allocation. The additional costs, complexity and time involved in this 
level of analysis would significantly change the existing process that 
is required for completion of the TMDL. Has EPA done a cost analysis 
for this new requirement? The complex modeling that this new 
requirement would mandate will certainly be very expensive and LDEQ 
does not believe that EPA considered this in their cost estimates? Is 
that true? Certainly, EPA's contention that the average cost for 
development of a TMDL is only $25,000, in no way considers this type of 
complex modeling.
     LDEQ does not believe that an Implementation Plan is 
required under Section 303(d). EPA's proposed regulations require that 
one of the elements of that plan be an identification of the necessary 
``legal or regulatory controls'' and development of a specific timeline 
to reach water quality standards. The process of implementing the TMDL 
and determining the timeline for attainment of water quality standards 
is separate from developing the TMDL and should be addressed through 
NPS Management Plans, the NPDES program and Watershed Restoration 
Action Strategies (WRAS), not the TMDL development process. Requiring 
that the Implementation Plan be submitted and approved with the TMDL 
will prevent LDEQ from meeting the court-ordered schedule that EPA has 
been assigned. The TMDL development and implementation process should 
be reviewed and approved separately and linked through the State's 
Water Quality Management Plan.
     On Page 46033: Column 2: Paragraph 2 EPA states that 
Section 303(d) does not provide any additional CWA authorities to 
implement nonpoint source controls, therefore, the implementation plan 
will provide a program to deal with nonpoint source contributions to 
impaired waterbodies using existing Federal, State, and local 
authorities and voluntary action to implement the allocations contained 
in TMDLs. This statement contradicts the previous statement, which 
requires that regulatory controls be identified as one element of the 
implementation plan. The description of the implementation actions that 
should be included in the Implementation Plan (paragraph 4) is 
redundant to the information contained in the NPS Management Plan and 
the Watershed Restoration Action Strategy (WRAS). Why would EPA 
encourage such duplication?
     On Page 46033: Column 3: Paragraph 3 EPA states that 
Reasonable Assurance is defined as NPDES permits for point source 
discharges. For nonpoint sources, reasonable assurance means that 
controls are specific to the pollutant of concern, implemented 
according to an expeditious schedule and supported by reliable 
mechanisms and adequately funded. Examples of reasonable assurance 
include State, Territorial or authorized Tribal regulations or local 
ordinances, performance bonds, memoranda of understanding, contracts or 
similar agreements. The States have included this type of information 
as a description of programs that will be utilized to implement their 
nonpoint source watershed projects and statewide programs in NPS 
Management Plans, WRAS, and work plans for Section 319 grant funds. If 
the States have met the 9 key elements of the upgraded NPS Management 
Plan and complied with the requirements for Watershed Restoration 
Action Strategies as the process for implementing TMDLs, hasn't the 
reasonable assurance component been met? An additional plan with the 
same type of processes identified is redundant and a waste of State and 
Federal resources.
     On Page 46034: Column 1: Paragraph 1 EPA states that The 
proposed rule states that if monitoring shows that voluntary measures 
are not resulting in progress toward attainment and maintenance of 
water quality standards envisioned when the TMDL was approved, the 
State, Territory, or authorized Tribe may need to establish a 
regulatory approach. LDEQ realizes that if a voluntary approach to 
reducing and controlling nonpoint source pollution is not successful, 
then additional steps will be necessary to achieve water quality 
standards. However, EPA needs to acknowledge that watershed modeling, 
implementation, and management for nonpoint sources are so technically 
complicated and expensive, that it is estimated to take as much as 10-
15 years to meet in-stream water quality standards. LDEQ is working 
with EPA to gather additional information on what the in-stream water 
quality goal should be for some of the nonpoint source pollutants that 
need to be reduced and controlled. The timeliness for development of 
the TMDLs is a serious concern presently, with many States completely 
revising their statewide water quality monitoring programs to meet the 
demands of watershed analysis and management. Analyzing these new data 
and understanding what they mean and how they should be allocated to 
the various land-uses that contribute to the pollutant load is a 
complicated scientific process that many States are just beginning to 
understand. It is important to allow sufficient time for this process 
to be adequately developed and properly presented to stakeholders. Only 
then will stakeholders understand why they are being asked or required 
to make changes in the type of home sewage system that they install or 
the farming methods that they use or how much timber they can harvest 
along a stream that runs by their property. LDEQ has been working on 
nonpoint source control programs for more than 10 years. However, much 
of the technology that is needed to accurately model a watershed is 
relatively new. Decisions made that require the public to take actions 
to reduce and control pollutants in their watershed need to be 
scientifically defensible. If not, both State and Federal Governments 
will suffer credibility problems because they required management 
practices that had not been adequately evaluated for the pollutant 
reduction capabilities. These are decisions that need to be made on a 
watershed-by-watershed basis and left to the State and its local 
governments to decide when regulatory actions are necessary to reach 
in-stream water quality standards.
     On Page 46034: Column 1: Paragraph 2 EPA states that some 
States, Tribes and Territories are concerned that the proposed 
definition of ``reasonable assurance'' would require adequate funding 
for implementation measures addressing nonpoint sources at the time 
that the implementation plan is developed. EPA intends that States 
should describe, based on best information available at the time, how 
adequate funding will be secured. In particular, currently available 
funding sources should be identified specifically. EPA requests comment 
on this particular provision of the reasonable assurance component of 
the implementation plan. States are already required to include these 
types of information in their upgraded NPS Management Plans and 
Watershed Restoration Action Strategies; therefore it should not be 
necessary to also include it as a component of the TMDL. Why can't the 
linkage between the TMDL and the implementation process for both the 
point sources and the nonpoint sources be explained in the State's 
Water Quality Management Plan?
     On Page 46034: Column 3: Paragraph 4 EPA states that the 
implementation plan must contain a description of the legal authorities 
under which implementation will occur. These authorities include, for 
example, NPDES, section 401 certification, Federal Land Policy and 
Management Programs, legal requirements associated with financial 
assistance agreements under the Farm Bills enacted by Congress and a 
broad variety of enforceable State, Territorial, and authorized Tribal 
laws to control nonpoint source pollution. This requirement to include 
a description of legal authorities under which implementation will 
occur implies that the TMDL would not be approved without legal 
authorities to control nonpoint source pollution from agriculture or 
forestry. Many States do not have legal authorities to enforce the 
implementation of best management practices such as conservation 
tillage and nutrient or pesticide management plans. The level of staff 
to inspect and enforce such a plan would far exceed the staff level 
that most States have. Much of the information is private information 
and there would be no mechanism to clearly link a water quality problem 
from in-stream concentration of low dissolved oxygen or high nitrogen 
to a specific farm or group of farms. It is unclear and unrealistic for 
the States to commit to this type of authority when it would be 
impossible to implement. Will EPA be able to determine such detail 
cause and effect among individual nonpoint sources? Can EPA provide a 
description of legal authorities that it will utilize to enforce 
implementation?
     On Page 46034: Column 3: Paragraph 5 EPA states that ``The 
proposed rules require that the implementation contain an estimate of 
the time required to attain water quality standards. The estimates of 
time required to attain water quality standards must be specific to the 
source category, subcategory or individual source and tied to the 
pollutant for which the TMDL is being established''. Does EPA have the 
ability to do what this proposal appears to require? Where is EPA's 
documentation for the detailed source identification and ``cause and 
effect'' relationship that this proposal would have the States provide? 
If EPA has this type of information, why have they not presented it to 
the States already? One of the challenges that LDEQ and many other 
State environmental programs presently face is how to assign the 
nonpoint source loads to categories, subcategories or individual 
sources (i.e. which home sewage system, which soybean field, which 
pasture). The extensiveness of GIS work involved to identify each 
field, crop, home sewage system and the monitoring to determine the 
pollutant load associated with it is time-consuming and expensive and 
scientifically premature at this point. The States are working on these 
types of watershed projects through the Watershed Restoration Action 
Strategies. Through these projects, the accuracy, time and expense 
necessary to make these types of pollutant loading estimates can be 
documented. LDEQ will need sufficient time to implement these types of 
projects in different parts of the State where crops, soils and land-
uses deliver pollutants differently. Once these pollutant fate and 
transport processes are understood, then realistic management 
strategies can be implemented. The State outlined this process in the 
upgraded NPS Management Plan and the WRAS. This is a reasonable 
approach to reducing nonpoint source pollution and complying with the 
intent of implementation of the TMDL. Enforcement should be utilized 
only after all of the cooperative efforts have been utilized and tested 
fully. It is LDEQ's decision, as to when a regulatory action is 
necessary.
Sec. 130.34
     Does EPA intend to recognize and promote the use of non-
mathematical TMDLs? If so, the proposed regulations do not address how 
to deal with the quantification requirement. Has the amount of 
reduction in load resulting from channel modifications been 
established?

                   COMMENTS ON 40 CFR PART 122 ET AL

     Although the initial target population is new and 
expanding dischargers to impaired waters, the actual target population 
also includes existing dischargers to impaired waters whose expired 
permits have been administratively continued. This would 
disproportionately impact existing dischargers in Louisiana while LDEQ 
addresses the permits backlog and the issue of verifying the correct 
water quality standards (WQSs) among the waters of the State.
     EPA continues to ignore the possibility that the water 
quality standards (including criteria and designated uses) may be 
incorrect and perhaps even unattainable naturally.
     In the absence of a TMDL, will EPA be required to prove 
the applicability/correctness/achievability of WQSs of the waterbody 
before they are allowed to inflict economic hardship on the point and 
nonpoint sources that discharge to the waterbody?
     In the absence of a TMDL where the WQSs are shown to be 
correct, there should be a limit to the level of increased treatment or 
BMP which EPA can mandate without issuing a new permit. For example, in 
the case of existing point sources, the limit might be set at no more 
than 10 percent more stringent than the existing permit limits. Will 
EPA be required to establish a current permit where one has expired or 
simply use the authority to impose more stringent limits?
     In the absence of a TMDL, there is no mechanism for 
determining or justifying more stringent limits for dischargers of 
nonconservative pollutants such as BOD. During the development of a 
permit for an individual facility, a water quality screen (in effect a 
``mini'' wasteload allocation) is used to assure that conservative 
constituents, such as metals, which are present in the waste stream do 
not violate WQSs. Other types of permitters and dischargers of 
nonconservative constituents are subject only to technology based or 
secondary treatment limits. In Louisiana, sanitary dischargers are 
already subject to a State policy which may be more stringent than 
secondary limits in the absence of a TMDL. Has EPA performed an 
economic impact analysis for this requirement? How can EPA know the 
extent of the fiscal impact of the proposal unless an economic 
evaluation is done?
     In the absence of a TMDL, how does EPA propose to defend a 
required pollutant load reduction greater than 1:1? Are there other 
mechanisms which can be used to develop effluent trading partners?
     EPA is in effect requiring point sources to police the 
non-point sources that 
participate in the effluent trading partnership. To force this type of 
confrontational relationship between stakeholders that utilize the 
waterways of the Nation is unproductive and will only result in 
delaying any benefits to the water environment. Instead, EPA should be 
more proactive in encouraging partnership agreements among stakeholders 
that will benefit all parties and more expeditiously address water 
quality concerns. Has EPA determined that such an alternative approach 
will not work?
     For the 4 targeted NPS facility types, a TMDL should be 
established before EPA has the authority to require a permit regardless 
of whether or not the State has an approved NPDES program.
     EPA's position regarding silviculture is unfounded and 
ignores how silviculture issues are uniquely addressed State by State. 
The existing regulations exempt nursery operations, reforestation and 
subsequent cultural treatment, thinning, prescribed burning, pest and 
fire control, harvesting operations, surface drainage or road 
construction from needing a permit. These proposed regulations remove 
this exemption and seem to imply that any silviculture activity for 
which EPA has established a TMDL can be required to obtain a permit. Is 
this really what EPA intended? Why has EPA targeted silviculture and 
what data supports EPA's position?
     122.26(a)(1)(v)(E) says that ``EPA shall only designate 
discharges from silvicultural activities into waters for which EPA is 
establishing the TMDL . . .'' Can the State establish a silvicultural 
activity as a point source needing a permit? If the State established 
the TMDL for EPA approval, can EPA designate discharges from 
silvicultural activities as a point source needing a permit? According 
to the wording, EPA could not. Is this correct?
     There seems to be a contradiction between the proposed 
regulations and 122.3(e). 122.3(e) says that ``any introduction of 
pollutants from nonpoint source . . . silvicultural activities, 
including storm water runoff from orchards, . . . range lands, and 
forest lands . . .'' do not require NPDES permits. As stated above the 
proposed revisions [which do not change 122.3(e)] say that any 
silvicultural activity for which EPA has established a TMDL can be 
required to obtain a permit.
     How does EPA propose to handle an impairment due to 
coliforms? The proposed regulations discuss allowing a permit to be 
issued if the permittee can implement load reductions. The main stem of 
the Atchafalaya River is on the 303(d) list due to coliforms. The 
Atchafalaya River receives about \1/3\ of the flow coming down the 
Mississippi River. It has a 7Q10 of about 60,000 CFS. Suppose 
Simmesport (a small town discharging into the Atchafalaya River) wants 
to expand more than 20 percent. How are EPA, the State and/or 
Simmesport suppose to implement a load reduction?
     LDEQ adopted the requirement to include a statement of 
basis in minor permits. Adoption of this part of the Federal 
regulations was not a requirement for assumption of the NPDES program 
(124.7 is not listed in 123.25). These proposed rules add to the 
statement of basis part of the Federal regulations the requirement to 
include in the statement of basis the reasons for limitations set to 
satisfy the offset load reduction requirements. Because the statement 
of basis part of the regulations was not a requirement for assumption 
of the NPDES program, LDEQ assumes the State will not have to modify 
its statement of basis regulations to include this requirement. Is that 
correct? Must the statement of basis prepared by States with an 
approved NPDES program contain the proposed requirement?
     123.1(d) states ``. . . the Administrator shall suspend 
the issuance of Federal permits for those activities subject to the 
approved State program.'' Since EPA has no authority to issue permits 
in States with approved NPDES programs, what will EPA accomplish by 
allowing themselves the authority to designate facilities or activities 
as point sources in 122.23, 122.24 and 122.26?
     122.23, 122.24 and 122.26 says that EPA can only designate 
facilities or activities as point sources when EPA establishes the 
TMDL. LDEQ assumes this means what it says and that EPA cannot 
designate facilities or activities as point sources when the State 
establishes the TMDL and submits it to EPA for approval. Is this 
correct?
     The proposed changes to the NPDES regulations and the 
Antidegradation Policy (131.12) drastically underestimate and overly 
simplify TMDLs. The proposed regulations refer to the TMDL or a TMDL 
for a waterbody as if you can develop one TMDL for a pollutant for a 
waterbody or a waterbody segment. The proposed TMDL definition says 
``TMDLs are written plans and analyses established to ensure that the 
waterbody will attain and maintain water quality standards (as defined 
in 40 CFR 131) including consideration of reasonably foreseeable 
increases in pollutant loads.'' The proposed definition appears to 
recognize that there can be more than one TMDL for a waterbody. Section 
303(d)(1)(C) of the CWA says, ``Each State shall establish for the 
waters identified . . . , the total maximum daily load, for those 
pollutants which the Administrator identifies under section 304(a)(2) 
as suitable for such calculation.'' Here the CWA appears to recognize 
that for some pollutants one TMDL cannot be calculated for a given 
waterbody. If this is the case then the process of developing a TMDL is 
even more time consuming and resource intensive than EPA is willing to 
admit. Have EPA's cost estimates taken this into consideration?
    If NPDES permits are going to be required for silvicultural 
activities, these permits will become subject to the same issues 
associated with permits for wood chip mills. These include issues such 
as, the right of a person to cut and sell timber on their own land and 
the habitat destruction issues associated with cutting. Who will get 
the permit--the landowner or the company cutting the timber? Has EPA 
considered the cost to the regulated community to obtain these permits 
and the costs of the agency to issue these permits? Did the cost 
estimate include the cost to the regulated community and the agency to 
deal with issues similar to those the chip mills are facing? For 
example: suppose someone owns 50 acres of land and lives in a 90-year-
old house on that property. Assume 40 acres of this land has an old 
stand of timber that has not been cut for at least 90 years. The 
landowner wants to sell all the timber to invest in a new house. Will 
the landowner need to apply for an NPDES permit or will the timber 
company need the permit? What kind of costs will the landowner have if 
he must hire a consultant to fill out the application and to address 
the kind of questions chip mills are getting? If these chip mill issues 
are bought up, will the decision be that the landowner cannot cut his 
timber? Has this cost to the regulated community been considered? Where 
these incremental costs due to the proposed regulations considered in 
EPA's cost analyses?
    Even if EPA issues a general permit for these silviculture 
activities, has EPA considered the cost to the regulated community to 
implement the BMPs? What will the cost be to the agency to inspect each 
site to verify the site is complying with the BMPs in their permit and 
what will it cost the agency in resources to effectively enforce these 
permits? The man-hour costs to EPA or the States will be tremendous to 
issue these permits, inspect sites and take enforcement actions for 
violations. EPA is already being criticized for having a backlog of 
permit applications. How will EPA deal with the tremendously large 
increase in workload? Can EPA defend their position that the 
silviculture contribution to nonpoint sources of pollution is 
significant enough to warrant such a regulatory change in how the 
Nation addresses silviculture?
                               __________

                    Statement of Clean Water Network

                             OPPOSE S. 2417

    On April 13, Senators Michael Crapo (R-ID) and Robert Smith (R-NH) 
introduced a bill, S. 2417, named the ``Water Pollution Program 
Enhancements Act of 2000.'' Unfortunately, this bill is anything but an 
enhancement--it is an attack on a key component of the Clean Water Act, 
the Total Maximum Daily Load (TMDL) program.
    The main force motivating the bill appears to be to delay new TMDL 
regulations proposed by the Environmental Protection Agency (EPA) in 
August, 1999. But the real purpose of the bill is to undermine the 
Clean Water Act's existing TMDL program. The result if the bill passes? 
More delay before States are required to clean up our polluted waters.

                           WHAT IS AT STAKE?

    Today, over 20,000 individual river segments, lakes, and estuaries 
across the country are polluted. The polluted waters include 
approximately 300,000 miles of rivers and shoreline and approximately 5 
million acres of lakes. These waters are not safe for fishing, 
swimming, boating, as drinking water sources, or for other basic uses.
    Fortunately, the Clean Water Act includes a program to clean up 
polluted waters, the TMDL program. For many years, this critical 
program was largely ignored by States and EPA. In recent years, 
lawsuits brought by environmental and conservation groups have begun to 
bring the TMDL program into effect to identify and restore impaired 
waters. As a result of the new attention to TMDLs, the program has come 
under attack by special interest industry groups. S. 2417 is part of 
this attack on the Clean Water Act.
    As the Act's watershed clean-up component, the TMDL program 
requires States to identify their most polluted waters and develop 
site-specific plans to clean them up. The clean-up plans are created by 
the States, using watershed specific data to determine a fair way to 
divide up responsibility among polluters for reducing the amounts of 
pollution discharged into the water. It is a comprehensive approach 
that allows States to coordinate programs to address polluted runoff--
the No. 1 cause of pollution in our waterways--as well as reduce 
pollution from point sources. It is a common sense, locally managed 
approach to cleaning up our rivers, lakes, and coastal waters. The EPA 
only steps in when the States fail to do the job, as required by-the 
Clean Water Act.

                      MAJOR PROBLEMS WITH S. 2417

    While provisions this bill authorizing more money for State 
pollution control programs and requiring scientific studies might seem 
like good ideas on the surface, the true purpose of S. 2417 is to delay 
the clean-up of our rivers, lakes, and coastal waters.
One-Sided Findings Attack a Promising Clean Water Act Program
    The findings in S. 2417 attack the whole approach of using TMDLs to 
clean up polluted waters, as required by the 1972 Clean Water Act. 
These findings stress the cost of watershed clean-up programs without 
citing the benefits of clean water; bemoan the number of waters that 
need pollution reductions without even acknowledging the major cause of 
the backlog--over two decades without action to implement TMDLs; and 
encourage more delay.
    The findings cite one conclusion from a recent General Accounting 
Office (GAO) report: that only 6 States have the majority of data 
needed to fully assess their waters. But the bill leaves out the fact 
that GAO's survey found that many State officials believe that 
additional monitoring would reveal more, Not fewer, pollution 
problems.\1\ This is hardly a good reason for more delay. The findings 
ignore the directive of Congress that TMDLs be set for impaired waters 
using ``a margin of safety which takes into account any lack of 
knowledge concerning the relationship between effluent limitations and 
water quality.'' While more monitoring data and scientific studies are 
always needed, Congress intended that the response to data gaps be that 
TMDLs be set at levels that are more protective of water quality, not 
that setting TMDLs be put off or ignored, as S. 2417 suggests.
---------------------------------------------------------------------------
    \1\ See ``Identification and Remediation of Polluted Waters Impeded 
By Data Gaps,'' Testimony of Peter F. Guerrero, Director, Environmental 
Protection Issues, Resources, Community and Economic Development 
Division, General Accounting Office, February 12, 2000.
---------------------------------------------------------------------------
    The findings also assert that ``many'' States are implementing 
``regulatory and nonregulatory programs'' that are ``functionally 
equivalent'' to the TMDLs program. Largely left a mystery is what these 
State programs are. The bill lists only one example: the Chesapeake Bay 
watershed protection program. But that program is not ``functionally 
equivalent'' to TMDLs for the Chesapeake Bay watershed. For example, 
the Bay Program does not ensure that pollution load reductions are 
incorporated into permits for point source polluters, and the program 
does not cover specific aspects of water quality that a TMDL program 
does, such as fecal contamination. The Chesapeake Bay Foundation (CBF) 
believes TMDLs are so critical to the Bay's health that it has sued EPA 
to compel the agency to issue TMDLs for Maryland, which is years behind 
schedule.
``Pilot Programs'' Threaten Further Delay and Undermine Congress' 
        Vision of a National Clean-Up Program
    The bill directs the EPA to establishes five pilot programs which 
would allow States to try alternatives to the TMDL program. It is 
difficult to imagine how States could effectively clean up impaired 
waters without identifying the sources of pollution, setting numerical 
goals for pollution reductions, and allocating reductions among 
dischargers. Yet that is what the TMDL program requires. What is the 
need for an alternative to the TMDL program, if the alternative would 
just do the same things?
    Pilot programs for State alternatives to TMDLs are unnecessary 
since the TMDL program is a basic, sensible watershed clean up process. 
States develop their own water quality standards and then develop lists 
of waters that are not meeting these standards. States and localities 
collect and analyze water quality data, models, and other information 
to decide what are the most efficient ways to reduce pollution. The EPA 
only takes over if a State fails to develop TMDLs or does an inadequate 
job.
    Prior to 1972, States had full responsibility for cleaning up 
waters and they failed. That is why Congress wrote the Clean Water 
Act--to establish minimum national standards which all States must 
meet. The TMDL provisions were largely ignored by the States and EPA 
for over 20 years. Over two dozen lawsuits against the EPA have been 
settled or decided against the agency for not doing what the law 
required: implementing the TMDL program. Why should five States be 
given another opportunity to try to avoid implementing the TMDL program 
when courts have decided again and again that it is time to comply with 
the TMDL program?
Unnecessary Study Could Further Delay Action to Clean Up Waters
    S. 2417 requires a National Academy of Sciences (NAS) study on the 
TMDL program. Like the findings and the pilot program provisions of the 
bill, the NAS study focuses on the scientific methodologies being used 
by States to identify impaired waters and set TMDLs, and on 
``alternative programs'' that may ``operate as a functional 
equivalent'' to the TMDL program. The NAS is given 18 months to issue 
their report. Until the study is done, the EPA would be prohibited from 
finalizing their August, 1999 proposed revisions to the TMDL rules. 
Like the other provisions of S. 2417, States could try to use an on-
going NAS study to argue for delays in fulfilling their current 
statutory obligations under the Clean Water Act to set and implement 
TMDLs. If successful, this could effectively derail progress toward 
cleaning up impaired waters for another 18 months, or longer, depending 
on how long it takes NAS to complete the study.
    While a study as to whether States are using all available data and 
following scientific procedures for monitoring and assessing the 
cleanliness of waterbodies may result in more uniform and more 
stringent protocols for States to follow, a study should not be used as 
a way to put off the work of cleaning up our waters. There is enough 
data available to begin the task setting TMDLs. It has been asserted 
that some waters on TMDL lists are listed based on questionable data. 
Although this is contrary to the experience of State and local groups, 
to the extent it could be true in some cases, it does not mean that a 
TMDL would be developed for a water that is not actually polluted. If 
an assessment of a waterbody scheduled to have a TMDL developed for it 
showed that the water was in fact meeting water quality standards, then 
it would come off of the list and the State would move on to the next 
water. Nobody is going to waste money developing TMDLs for waters that 
are is shown to be clean.
New Funding is not Appropriated, Requires no Accountability, and Source 
        of Funds Not Identified
    S. 2417 would authorize $500,000,000 per year in grants through the 
Clean Water Act section 319 program to be used for polluted runoff 
controls. Increased funding to reduce polluted runoff is sorely needed. 
The environmental community supported EPA's efforts in the two previous 
fiscal years to increase the section 319 fund from $100,000,000 
annually to its current level of $200,000,000. However, this bill fails 
to mention several key issues associated with an increase in 
authorization for the 319 fund.
    First, the bill fails to mention in the findings the millions of 
dollars that have been given to States and private landowner through 
the Conservation Reserve Program, the Conservation Reserve Enhancement 
Program, the Wetlands Reserve Program and the Environmental Quality 
Incentives Program to assist landowners in better protecting streams 
and wetlands from polluted runoff. The bill would have its readers 
think that the Federal Government has spent little money to date on 
polluted runoff, when in fact millions per year are already given to 
States and landowners through farm programs and the EPA's 319 program.
    The second problem is that the bill proposes increasing the amount 
authorized under section 319, but includes no requirements that the 
Best Management Practices activities funded with this money actually 
result in cleaner water. The findings of the bill point out that 
billions of dollars have been spent on addressing point source 
discharges, but fail to mention that those grants and loans to point 
source dischargers came with strings attached: enforceable permits. It 
is unfair to taxpayers to increase the amount of money--given to 
landowners under the 319 fund without including some provisions to 
ensure that they are actually cleaning up the waters with the 
activities funded by the money.
    The final funding issue to be aware of is that this bill would 
authorize increased funding for section 319, but we have seen no 
evidence to date that Congress is interested in finding the money to 
increase grants to States or landowners. It is ultimately up to an 
appropriations committee to come up with the money from EPA's existing 
budget or from the general treasury to fund 319 grants. To date, no new 
source of money has been identified to fund this increase if it were 
authorized.
                               CONCLUSION

    By finding that there is not adequate data or enough money to 
implement the TMDL program, or that there is some other ``functional 
equivalent'' to the approach Congress adopted 28 years ago, S. 2417 
would allow States to try to argue that Congress intends that they 
delay implementing their legal duty to establish TMDLs for polluted 
waters. Rather than create more excuses for delay and weaken the Clean 
Water Act, Congress should provide adequate resources to States to 
implement this critical program to clean up our waters and should 
encourage States to move quickly to establish TMDLs and to restore 
polluted rivers, streams, lakes and coastal areas. Isn't 28 years since 
the Clean Water Act already too long to wait for clean and safe waters?

      PROPOSED RULE CHANGES IN THE TMDL AND NPDES PERMIT PROGRAMS

                              ----------                              

                         MONDAY, JUNE 12, 2000

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                   Hot Springs, AR.
    The committee met, pursuant to notice, at 6 p.m., at the 
Hot Springs Convention Center, Hot Springs, AR, Hon. Michael 
Crapo presiding.
    Present: Senator Crapo.

       S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000

    Also present: Senator Hutchinson.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. This will call to order the hearing of the 
Senate Committee on the Environment and Public Works, in Hot 
Springs, AR, on the Senate bill S. 2417 as well as on the 
proposed rules and regulations of the Environmental Protection 
Agency. First of all, let me introduce myself to you. I'm 
Senator Mike Crapo from Idaho. It's my first time in Arkansas. 
I got here this morning, and I have had a wonderful, warm 
welcome from you. I appreciate that very much. Sitting with me, 
as I'm sure you recognize, is your Senator, Tim Hutchinson. 
Senator Hutchinson and I were elected to the House of 
Representatives the same year, and I appreciate being on the 
panel with him today. We also may be joined by Representative 
Jay Dickey, and look forward to him joining with us if he's 
able to make it here. If you see him out there, tell him we've 
already welcomed him to come up and join with us up at the 
front.
    Tim, maybe we'll make our opening statements and then I'll 
go into the ground rules for the hearing.
    So let me begin by saying that this is a formal hearing of 
the Senate Committee on Environment and Public Works. It is 
authorized by the Chairman, Senator Bob Smith, of New 
Hampshire, who was not able to be here with us today because of 
scheduling, but who is very interested in this issue. I don't 
know of many proposals by a Federal Agency in rulemaking that 
have generated more concern nationwide than this. There have 
been over 30,000 public comments, the majority of them against 
the rule, concerns being raised from across the country, north 
to south, east to west.
    This is not a partisan issue. This is an issue of concern 
that 
people across America have spoken out against. Some of us are 
concerned that the EPA may be and seems to be committed to 
proceeding with the promulgation of a rule that goes beyond its 
jurisdiction, that has not been properly analyzed and is going 
to cause not only a slow-down of water cleanup efforts around 
the country and States where they are already well underway in 
a different manner, but also cause significant cost to the 
States and to the private sector as the rules are promulgated. 
There have been six or seven hearings in Congress on this 
issue. I haven't seen proposed rules that have generated this 
kind of concern and opposition since I have been serving in 
Congress. The legislation that is before you was introduced by 
Senator Bob Smith, the chairman of the committee, and myself. 
It has been cosponsored by Senator Hutchinson, who was a 
supporter early on. I'm not going to go into detail about that 
legislation right now, but it will provide significant 
financial resources to the States in terms of the efforts they 
are undertaking under the current Clean Water provisions to 
identify the waters of the country that need attention and to 
provide resources to their cleanup. It will also provide for 
individual State pilot programs. They will determine what's 
working in different parts of the country and indicate what 
should be promulgated and facilitated. In addition, it provides 
for a National Academy of Sciences study to provide the kind of 
science and analysis of these issues that are raising so much 
concern nationwide.
    From the hearings that were held this Congress, we have 
found significant disagreement on the science and on the 
quality of the science. The bill stops the EPA from 
promulgating this rule for a period of 18 months while we wait 
for the National Academy of Sciences study. It lets us take 
what I've often said is ``a deep breath.'' Let's take a 
breather and start analyzing the problem in a new way. It's a 
complicated and a difficult issue.
    I will turn the time over to Senator Hutchinson for any 
statement that he now wishes to make.

           OPENING STATEMENT OF HON. TIM HUTCHINSON, 
            U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Hutchinson. Thank you, Mr. Chairman, and we do 
welcome you to Arkansas. I only regret that you couldn't be 
here longer. I hope that we can have you back soon.
    I would say to our audience that our only difficulty has 
been persuading you that these really are mountains that you 
see around here. Being from Idaho, you might have a little 
different idea of what a mountain is.
    We appreciate your willingness to hold this important field 
hearing on the EPA's TMDL proposal. Congress, as you pointed 
out, has already held seven hearings on this matter. I couldn't 
be more pleased that the State of Arkansas, which has so much 
at stake in this issue, could host this--possibly the final 
hearing before the EPA finalizes its rule as early as next 
month.
    I'm looking forward to hearing from each of our 
distinguished witnesses as they comment on your bill, S. 2417, 
the Water Pollution Program Enhancements Act. And I also would 
like to welcome those of you who took time out of very busy 
schedules here on a Monday night to learn more about the TMDL 
issue, to express yourself and share your concerns about the 
TMDL proposal. A special thanks to Andrea Whittaker and the Hot 
Springs Convention Center and their assistance and cooperation 
in facilitating the hearing. I'm here this evening because of 
the outcry from Arkansans in response to the EPA's proposal to 
expand and to control the Total Maximum Daily Load and the 
National Pollutant Discharge Elimination System programs. Mr. 
Chairman, I believe this proposal is a conscious effort to 
circumvent the Clean Water Act and legislate through 
regulation, directly contradicting Congress's intent when it 
debated legislation on nonpoint source pollution. I remember 
well participating in that debate when I served on the House 
Environment and Public Works Committee, and recall specifically 
that States would be--reserved the authority to define and 
enforce the nonpoint sources of pollution. We debated whether 
that should change, and we rejected the notion that that should 
be directed out of Washington with EPA out of Washington. As 
has always been the case, waters polluted by nonpoint source 
runoff are managed by State-run nonpoint source programs. Under 
the TMDL proposal, however, the EPA is required to take action 
if a State failed to meet its--EPA's--expectations. For 
example, farmers near Stuttgart may be asked to use alternative 
methods in their operations to prevent fertilizers and 
pesticides from reaching rivers. The city of Hot Springs could 
be required to control or treat runoff from its own streets. 
Chicken houses near my hometown of Bentonville or fish farms in 
Keo could be designated by the EPA as a point source polluter 
under this proposal.
    Therefore those new point source polluters would need to 
get a permit to stay in business. Since January, three public 
meetings have been held in Arkansas to discuss the EPA's 
proposal, with more than 8,000 residents attending these 
various public meetings. It was clear from what was said at 
those meetings that farmers, foresters, private landowners and 
community leaders across Arkansas are deeply worried that 
requiring States to enforce stricter TMDL standards will 
stretch State, local and private resources to the breaking 
point. I have rarely, if ever, seen an issue or a rule 
promulgated by EPA that has drawn this kind of public 
attention, this kind of public concern. It's clear to me that 
one of the core issues motivating Arkansans to attend these 
public meetings by the thousands is trust. Ultimately the 
people of Arkansas do not have confidence, they don't trust the 
EPA. The EPA has not earned that trust, in my opinion. Clearly, 
the Agency has done a very poor job of communicating their 
proposals to those whom it will affect the most. Due to 
overwhelming public criticism, the EPA recently proposed 
additional changes to its August 1999 proposal--first on April 
5, then on May 1, and again last week, when it was reported 
that EPA was only exempting forestry operations. Let me just 
say that releasing documents and announcements of substantive 
changes to a non-yet-final regulation constitutes unusual and, 
I think, not responsible behavior by a Federal Agency. It also 
raises the question as to whether these changes that have been 
proposed are based upon genuine scientific evidence or whether 
they firmly believe that the rules' long-term burden on States 
and landowners remains unchanged. If the EPA does exempt 
forestry--and that's a big ``if,'' in my opinion--and the 
commitment that they have made in writing is that they will 
repropose a rule later this fall for forestry to be implemented 
next year under a new Administration. It could well be the same 
kind of rule would be reproposed. All they have really done is 
to separate the two issues and to grant a little bit of time. 
If, in fact, forestry is exempted, we're only halfway there--
halfway to keeping the EPA out of private landowners' back 
yards. We still have a lot of work to do. The rule takes aim at 
the backbone of Arkansas' economy--agriculture.
    In terms of States handling this matter, Arkansas alone has 
put forth a tremendous effort to implement statewide best-
management practices and other water quality regulations. Mr. 
Chairman, our Poultry Litter Management Plan is a model for 
other State-level plans. Arkansas' forestry industry has 
reduced its impact on local watersheds by 85 percent through 
voluntary best-management practices. Simply put, the States are 
getting the job done and must continue to have the freedom to 
handle this matter on the State level, not from a Washington-
knows-best, top-down, one-size-fits-all, unfunded-Federal-
mandates approach. Mr. Chairman, that's why I was glad to 
cosponsor your bill, S. 2417. It's responsible; it's timely. It 
is an important response to EPA's rule. The funding it 
authorizes would provide States with greater resources to 
address their water quality priorities, and it's badly needed. 
A GAL report released in March of this year noted the financial 
difficulties that States face when attempting to implement 
nonpoint source TMDL programs. That's money the EPA isn't 
providing when handing States and localities costly mandates. 
Your bill also requires the National Academy of Sciences to 
study this issue. I think that's the proper approach. I think 
we need to have a good scientific basis for any proposed rule. 
To help States with their Watershed Management Programs, your 
bill also establishes a Joint Watershed Management Pilot 
Project. Finally, your bill requires the EPA to review the NAS 
study and take into consideration its recommendations when 
finalizing a TMDL rule. Mr. Chairman, thank you again for 
designing this common-sense legislation which assists States in 
meeting their own water quality needs without excessive 
intrusion by the EPA. We're very proud in Arkansas to call our 
State ``The Natural State.'' I think we have very responsible 
and hard-working property owners, whether it's in poultry, in 
beef production, or in forestry--in this part of the State, 
timber production is huge--or whether it's in row-crop 
agriculture in eastern Arkansas. They care about the land; they 
care about their State; and that is why I'm frustrated when the 
EPA acts as though it's not accountable to Congress or to the 
American people. I think we're making great strides and great 
progress. I appreciate your legislation that will enable us to 
continue to do that. I'm glad to be cosponsoring it. Thank you 
for coming to Arkansas and holding this hearing this evening.
    [Applause.]
    Senator Crapo. Thank you very much, Senator Hutchinson. 
Ladies and gentlemen, we are under a very tight timeframe 
tonight, so let me point out the rules for the operation of the 
hearing and encourage all of you--especially the witnesses--to 
try to pay as strict attention to them as you can. I will 
remind you if you're going overtime. We have two panels--three 
witnesses on the first panel and four witnesses on the second 
panel, and we feel it's very important for us as the members of 
the Senate committee to be able to engage with the panels in 
questions and answers and dialog. Therefore, we like to spend 
as much of the panel time as possible in dialog with the 
panelists rather than to spend the time hearing the oral 
testimony. We have allocated to each of you 5 minutes to 
present your oral testimony. I have never been in a hearing yet 
where a witness has been able to say everything they want to 
say in 5 minutes. I can almost guarantee you that all of you 
who are here to be witnesses will see your time will run out 
before you have run out of things that you want to say. What I 
would like to ask you to do is to watch the lights. The green 
light means that you're doing all right. The yellow light means 
you have 1 minute to begin summing up. When the red light goes 
on, I ask you to please conclude your thought. I assure you 
that the committee members read your testimony, that we will 
very carefully review your statements. You will also have an 
opportunity during the questions and answers to get into a lot 
of what you may not have been able to say during your 5 
minutes. So please do watch the time, and if you do start going 
over a little too long, I'll tap the gavel here a little bit 
just to remind you that it's time to wrap up. We have also 
allocated 30 minutes at the end for the audience, if any of the 
members of the audience would like to go to the open mike and 
say something. Now, that's a little bit risky, because if 
everybody here chooses that option, we're not going to have 
much time for each of you to use. What we will do at that time 
is I'll ask for a show of hands to just get a gauge of how many 
of you want to say something. If it's enough that we can handle 
in 30 minutes, we'll try to figure out how much each of you can 
have and then go from there. If it's far more than that, then 
we're going to have to just figure out a system where as many 
of you as possible can have a minute or so to say something and 
then encourage the remainder of you to submit your comments to 
us in writing. I will assure you that if you choose the 
alternative of submitting your testimony in writing, that it 
will be reviewed by the members of the committee, it will be 
reviewed carefully by staff and will become a part of the 
permanent record. So with that, let us begin with the first 
panel. Our first panel tonight consists of Mr. Gregg Cooke, the 
Regional Administrator for region 6 Environmental Protection 
Agency from Dallas, TX; Mr. Randall Mathis, director of the 
Arkansas Department of Environmental Quality from Little Rock; 
and Mr. Larry Nance, the deputy forester of the Arkansas 
Forestry Commission, also from Little Rock; and we will begin 
with you gentlemen in that order.
    Mr. Cooke, you may begin.

  STATEMENT OF GREGG COOKE, REGIONAL ADMINISTRATOR, REGION 6, 
          ENVIRONMENTAL PROTECTION AGENCY, DALLAS, TX

    Mr. Cooke. Thank you very much, Senator. Again, my name is 
Gregg Cooke, and I'm the Regional Administrator for EPA region 
6, which includes Texas, Arkansas, Louisiana, Oklahoma and New 
Mexico. With me tonight is Bill Hathaway. He's my Division 
Director for Water, sitting next to me, and I have submitted 
the testimony for the record. In addition to that, the letter 
to Senator Smith that outlines the response of the EPA 
regarding silviculture has also been submitted as well, which 
would amend my testimony. When talking to Senator Hutchinson's 
office, the thing that the office indicated to me was what you 
really wanted to hear was what this meant from a regional 
perspective as opposed to a Washington perspective, and I've 
come prepared to talk about that. And let me start my 
presentation--and it's going to be hard for the folks in the 
audience, and I've got some copies, but I want to direct you to 
the map that we have over here, and that map is of EPA region 
6, and the red lines on that map are how each different State 
decided to list their stream segments on 3 or 3D list. There 
was so much misunderstanding of how to do listing streams and 
what TMDLs would all be about. In Oklahoma, apparently they 
determined that if they listed more streams, they might get 
more Federal money, whereas in Louisiana, they determined at 
one point that if they had listed a stream--one segment--all 
the streams in the entire watershed had to be listed. So as a 
result, you had a complete inconsistency on a State-to-State 
basis on what a 3 or 3D list of threatened streams would be. It 
is from that genesis that the determination of a new TMDL rule 
by this Administration began, not to do the things that--to be 
overburdened in terms of regulation, but to bring consistency 
and understanding on how we can go forward and clean up rivers, 
specifically in light of the litigation backdrop in which we 
find ourselves. Now, I don't know about other regions, but in 
this region we have three of the five States that are under 
consent decrees in relation to TMDLs, and the most recent one 
was Arkansas, and as a result of that, the EPA has gotten sued 
for failing to do these TMDLs in conjunction with the States, 
and as a result of that, we have determined that--we have found 
that we're under different timeframes under how to do the 
TMDLs. And so as a result from learning in the Louisiana 
experience, where we got the very shortest period of time and 
are appealing the judgment to the Court, we learned in Arkansas 
that maybe by working together more thoroughly with the State 
and coming up with a schedule that we could all live with, and 
not in the best of circumstances but one that we could 
conceivably live with, the State was by far the best way to go. 
As a result, the timeframes under the consent decrees, 
Senators, in this case in Louisiana was 7 years and Arkansas is 
9 years, and New Mexico is 10 years, are still shorter than 
what the 15 years will provide for in this rule. So when I look 
at States such as Texas, which have not yet begun the 
litigation process, the failure to have this particular rule in 
place could--and I would almost assuredly indicate would ensure 
litigation in those States and continue to have the shortened 
timeframes. I have gone through many of the Senate--the 
hearings that you've talked about, Senator, and either Bill or 
I have been--Monroe, LA, El Dorado, AR, and we've certainly 
heard all of the comments that you've made. Now, our job is to 
actually with the States, manage this workload and get this 
workload done. That's our job. And so we have a very pragmatic 
problem ahead of us. And let me explain: We have to do these 
with our States. Now, Randall, I've had a number of meetings 
with the State directors in my region, and many times with 
Randall Mathis, as we sat down at a table with Bill and his 
staff and tried to work out a way of how this was going to be 
accomplished. And I know I hear some of the concerns of folks 
about things that we want to permit under this rule, and I 
scarcely say that in the States in my region, that would not be 
necessary, and we would never reach that point, because we have 
to rely upon the States in order to accomplish these tasks. The 
best management practices that you have outlined are exactly 
the types of things that will be relied upon to create a TMDL. 
The types of programs that the forestry program has are exactly 
the types of programs that we would need to utilize, and 
without utilizing those with us, we do not have the manpower 
nor do we have the desire under any circumstances to have 
regulations which are any way punitive or don't work toward the 
overall desire and goal of achieving water quality. And so 
given the litigation backdrop that we have, given the resource 
backdrop that we have, our best goal and chance is to work with 
the States on their programs with our manpower to divide up 
tasks to achieve the goal. Now, I don't know exactly, really, 
how it appears from Washington, but I can tell you how it 
appears from Dallas as we try to manage this workload, and we 
don't have any desire or time or any desire at all to look at 
some of the aspects that I've heard in terms of permitting 
sources or taking away forestry operations. That's not what our 
intention is, and I think that you'll find that this rule, in 
my belief, actually will help forestall litigation, and without 
the clarity of this rule, the type of patchwork that you see on 
this map will continue to be pervasive, and we will not be able 
to move forward to achieve the mutual goals of water quality. 
Now, I know you have a number of questions, but I will tell you 
that the resource issue is an incredibly big issue and that the 
States and through our proposals, you know, that we do have 
additional resources for the States, and I do believe, I think, 
working with them, that those resources plus our manpower will 
be enough to achieve these mutual goals. Thank you very much, 
and I look forward to your questions.
    Senator Crapo. Thank you very much, Mr. Cooke.
    Mr. Nance.

   STATEMENT OF LARRY NANCE, DEPUTY STATE FORESTER, ARKANSAS 
              FORESTRY COMMISSION, LITTLE ROCK, AR

    Mr. Nance. Mr. Chairman, I'm Larry Nance, deputy State 
forester with the Arkansas Forestry Commission, and the 
Arkansas Forestry Commission welcomes you to Arkansas.
    Senator Crapo. Thank you.
    Mr. Nance. The forestry community thanks you for supporting 
the Water Pollution Program Enhancements Act of 2000, S. 2417. 
Thank you for sponsoring that bill.
    The State Forester of Arkansas also supports the bill that 
you have proposed. We are pleased that Arkansas Senator 
Hutchinson is a cosponsor, and we also are pleased for the 
support by Congressman Dickey. Everyone wants to protect water 
quality, especially our loggers, the foresters and the forest 
landowners. We all feel that water quality is very important--
forest water quality is very important. Although EPA appears 
determined to install a regulatory approach, the Arkansas 
Forestry Commission, our Board of Commissioners, the Governor 
and the State Forester all support voluntary implementation of 
Best Management Practices to protect forest water quality.
    Mr. Chairman, we applaud the idea for EPA to contract with 
the National Academy of Sciences to study development of TMDLs 
and review other methods of achieving water quality. Arkansas' 
State Forester John Shannon, who couldn't be here tonight, has 
served on the National Academy of Sciences forestry committee. 
The organization does outstanding work. We hope that you will 
suggest to EPA and the National Academy that a southern State 
Forester serves as a member of the study committee. Again, as 
Senator Hutchinson pointed out, this is a proper step. We are 
pleased that your bill provides grants for water quality 
improvement projects and also for other alternative methods for 
meeting water quality standards. Last, as part of my testimony, 
the Arkansas Forest Commission's position is, first, that 
silviculture maintain the nonpoint source category; second, 
that forestry practices not require an NPDES permit; third, 
best management practices remain voluntary; and finally, the 
AFC--or the Arkansas Forest Commission--welcomes an EPA review 
of our BMP implementation monitoring program and our training. 
Looking at EPA's own data, everyone can see that Arkansas' 
forestry community has been doing a good job of protecting 
water quality. Mr. Chairman, Senator Hutchinson, we thank you 
for the support that you've given to the forestry community and 
the support that you got as far as sponsoring S. 2417. Thank 
you very much.
    Senator Crapo. Thank you very much, Mr. Nance.
    Mr. Mathis.

 STATEMENT OF RANDALL MATHIS, DIRECTOR, ARKANSAS DEPARTMENT OF 
             ENVIRONMENTAL QUALITY, LITTLE ROCK, AR

    Mr. Mathis. Thank you, Chairman Crapo and Senator 
Hutchinson, and Senator Crapo, we welcome you to The Natural 
State in the Heartland of America. We've got the clean air and 
the good water, much as you have in your home State.
    Senator Crapo. Thank you very much, Mr. Mathis. And I've 
enjoyed my time here. It's a wonderfully warm community.
    Mr. Mathis. You know, I've always felt that each of us 
could say something about what we believe to be the quality of 
life, and it would be somewhat different. You have my prepared 
statements, so I will move away from them somewhat. But I 
believe the quality of life begins with the environment, and 
the quality of the environment begins with the commitment that 
we make to that end. Now, we know that if we are to be 
successful, we have to protect our water and our air and our 
land, but we have to do it in a common-sense way, with common-
sense laws and regulations. And Mark Twain once said, ``Common 
sense is not too common,'' and I believe that to be too often 
true in Washington's EPA development of Federal environmental 
regulations. I commend you, Senator Crapo, Senator Bob Smith, 
committee Chair, Senator Hutchinson on co-sponsoring, but I 
think you have an excellently crafted bill in S. 2417. I think 
it's critical that this bill be adopted. It's a common-sense 
bill, and I believe its passage to be critical to the continued 
protection and enhancement of the environment and to the 
economic well-being of all our people. Surely this bill can be 
embraced by Democrats, Republicans, Independents and the 
public. It makes sense. There is not a whole lot of difference, 
with the exception of two sections, in my opinion, as to what 
is now being said by Mr. Chuck Fox in Washington EPA. He called 
me in the beginning of April and said, ``What can we do with 
this proposed regulation?'' I suggested that he pull it back 
and make the language comport with the language in the proposed 
regulation. What he and Ms. Browner were saying was not what 
could be limited by the open-ended language in the regulation. 
I think, as we look at the agriculture and silviculture part of 
it, we know that our export of our products in those two 
industries help reduce the ever-increasing national debt--not 
national debt, but trade deficit. That's an important issue. I 
know, I was reared on a farm, lived on a farm a lot of my life, 
farmed a good number of years. We're kind of free spirits out 
there on the farm. We're good stewards of the land. In a 
voluntary program in Northwest Arkansas, Senator, where you 
hail from, in the Moores Creek Watershed, 95 percent of the 
farmers agreed and put in Best Management Practices, and we've 
seen a significant improvement in the watershed in the body of 
water that is used as a public water supply. They're good 
stewards of the land, and they're good stewards of the water. 
What is a Best Management Practice? That's going to depend on 
the topography of the land, the soil characteristics, the 
geology, any number of things that will determine what it is. 
When farmers understand and can participate and be a part of 
the process and know that there is a problem and that they 
might be contributing to that problem, I can tell you that they 
may know more about how to correct it on their particular farm, 
and one-size-does-not-fit everybody in a Best Management 
Practice plan. Now, I want to say that I think section 3 of S. 
2417 is critical to the success of the TMDL program. It's true 
in both the 106 and 319 program, and I think the 90 percent 
grant that's going to be available with $200 million under the 
319 program to the people who own the land is important. I 
would just say to you that States have to match 40 percent with 
the money that are available currently, and I would like for 
you to consider that. We see an ever-growing staff in EPA in 
Washington. While the State's running 70 percent of the 
programs in the State, we provide 75 to 80 percent of the 
enforcement, and 94 percent of the data that's in EPA's data 
base provided by the States. EPA recently erected a Chinese 
wall as the appropriation bills came by to make sure that ever-
increasing staff in Washington was able to continue to protect 
the money for salaries. I would like to see that whole group up 
there reduced to about 500 competent people and increase the 
number of people out in the regions who are where the work is 
and closer to the people in the States.
    [Applause.]
    Mr. Mathis. Mr. Chairman, it looks like my time is about 
gone. I had so much more I wanted to say.
    Senator Crapo. Sounds like you got the audience with you, 
though.
    Mr. Mathis. Thank you.
    Senator Crapo. Thank you very much, Mr. Mathis. And let me 
begin with the first round of questions, and I'll direct my 
first questions to you, Mr. Mathis. You indicated that you felt 
that the legislation would increase the Federal Government's 
share of the matching dollars from 60 percent to 90 percent, 
and that was a positive move. The EPA has criticized that, 
saying that they think that it would make less money available 
to be spread around the country. Do you have a comment, or do 
you think that criticism is valid?
    Mr. Mathis. Of course. What they are saying in that 
criticism is that if States put in 40 percent of the money and 
there is a particular amount of money available to the States 
and we only have to put 10 percent, then certainly that is less 
than what they would put in plus 40 percent. With unfunded 
mandates that have come down from time to time, the States are 
pretty well strapped in their ability to meet a 40-percent 
match.
    Senator Crapo. And as you know, in the legislation, we 
increased the Federal money that would be going to these 
programs.
    Mr. Mathis. That is correct. We've been operating on 
shoestrings and trying to come up with programs. I, as did Mr. 
Nance, applaud you for getting the National Academy of Science 
involved. I think that brings more public trust into the whole 
system, but I'm a little concerned about the 18 months. It 
seems to me like maybe it ought to be more like 24 months. EPA 
has had 28 years and have yet to come up with the guidelines on 
how the States should conduct a TMDL. So this is not going to 
be easy for anybody. It's a complex issue. We enjoy an 
excellent relationship, at least before I made my statement, 
with the regional office in Dallas. How much of this is going 
to be raked off before any of it comes to the States for any 
kind of match by the Administration in Washington? Most of the 
Administration's money should come as grants to the States 
through the regional offices, where the work is really done.
    Senator Crapo. Mr. Mathis, I assume that the State of 
Arkansas has a comprehensive approach to water cleanup in terms 
of nonpoint source pollution already underway; is that true?
    Mr. Mathis. That is correct. The Arkansas Soil and Water 
Commission. In 1990, I drafted a letter for then-Governor 
Clinton's signature, giving that program to them for a 3-year 
period. Then in 1993, I gave then-Governor Tucker a letter 
extending it for 3 years. They have the Rural Conservation 
Districts in every county. They fund some of their costs of 
operation. They have an excellent relationship with the 
farmers. Finally, we said, ``Hey, they need the program. 
They're doing an excellent job in it. A lot has been done since 
1979.''
    Senator Crapo. By the way, I just got a note indicating 
that this is the tenth congressional hearing on this issue, not 
the seventh, as I had suggested it might have been. But one of 
the things we've been hearing in those hearings from State 
officials is just as you've testified, Mr. Mathis, that they 
have existing programs well underway to address these issues 
under the Clean Water Act and that if they are required to 
shift into the new proposed rule, if the EPA finalizes this 
rule, that it's going to cause them to have to pull resources 
away from their current efforts to comply with the requirements 
of the rule and that that could deter from the success of the 
efforts that are already underway; do you feel the same?
    Mr. Mathis. Yes, I do. I think it's critical that we have 
this legislation passed that provides some funding, but also 
sets up the whole mechanism that you have encompassed it. Since 
1979, Arkansas has had a permitting program on Confined Animal 
Operations with Liquid Waste Operations, like pork, dairy 
farmers, laying hens. One other State, I think, in the country 
got there before we did, and I believe that was Kansas. But a 
number of other States, we've had meetings throughout a region. 
Six years ago we met in Colorado. On the way back, I was 
visiting with my counterparts from Kansas and from Minnesota 
and Texas, and as I talked about what our program was, they 
said, ``Gosh, we wish we could do that. Why don't we set up a 
regional meeting?'' So there's been about eight or nine States 
in the midwest and in our part of the country that have met 
annually to come up, and what we did in each of those was to 
say, ``Let us first give each State what you do with your 
program in that regard on nonpoint source.'' We agreed that 
nobody would back off what they were doing, but everybody else 
would come up to speed with whatever was the best program.
    Senator Crapo. So you each pull from the best that everyone 
else had?
    Mr. Mathis. That is correct. And it's going to take some 
time. As I said, we got a lot of free spirits out there. I'm 
one myself. I just know that if we had said under a regulation 
such as was proposed, that you have to do this, that there 
would have been less than 95 percent of the people in Moores 
Creek Watershed rather than to say, ``Yes, I may be part of the 
problem. I will put in a voluntary program.'' When we 
understand those things and we have time to work together, we 
can solve these problems.
    Senator Crapo. Thank you. Mr. Nance, could you take the 
mike for a moment? I assume from your testimony, but I wanted 
to be sure, that you support the position that the current 
Clean Water Act does not require or even authorize the EPA to 
impose a permit system on silviculture activities; is that 
correct?
    Mr. Nance. That's correct, Mr. Chairman.
    Senator Crapo. And do you believe that the current system 
of dealing with water quality in silviculture activities in 
forestry is working well in Arkansas?
    Mr. Nance. Yes, it is, Mr. Chairman. The last 2 years, the 
Arkansas Forest Commission has implemented an implementation 
survey of all harvesting operations in Arkansas. We've done 
that for 2 years now--implementation monitoring. And the survey 
results have been 80 and 85 percent. Our loggers and our forest 
industry are doing a great job out there. Our implementation 
monitoring surveys, again, says 80 to 85 percent that were 
following Best Management Practices.
    Senator Crapo. All right, thank you. And just one other 
question. The same question I asked Mr. Mathis: If the EPA does 
promulgate the rule as it exists and does not exempt forestry 
activities, do you believe that the activities that will be 
necessary to comply with the rule will pull resources away from 
current programs and make them less effective?
    Mr. Nance. Yes, Sir. The States, as Mr. Mathis pointed out, 
will be strapped to fulfill EPA's proposed guidelines. If we go 
on with the proposed guidelines put out by EPA, we'll shut down 
the forest industry in Arkansas.
    Senator Crapo. That's a pretty broad statement, but you 
feel that strongly about it?
    Mr. Nance. Yes, Sir.
    Senator Crapo. Mr. Cooke, we appreciate you being here, and 
I have a whole lot of questions for you. I don't even know if 
I'll get to ask them all in the time that we have, but I'm 
going to start with just one. And I'm referring to the letter 
which you referred to in your testimony from Chuck Fox to 
Chairman Smith of the committee. In that letter--and I'm going 
to read from the second-to-the-last paragraph. It states: ``In 
response to the interest in additional discussion of the 
forestry water quality issues,'' which I take it to mean in 
response to the uprising around the country that has taken 
place because of the proposed rule, ``that the EPA will not 
include forestry provisions in the TMDL regulations that will 
be finalized this summer.'' It actually will be finalized in 
about 2 weeks if the EPA keeps on the schedule that it has 
announced. ``Instead,'' Mr. Fox says, ``I expect that the 
Agency will repropose provisions of the August proposal related 
to forestry later this fall along the lines described in the 
USDA-EPA Joint Statement.''
    I realize that this is Mr. Fox's letter, not yours--but I 
assume you understand what he is proposing here. As I 
understand it, he's saying that the EPA will not finalize the 
forestry provisions in the proposed rule in 2 weeks, but that 
they will repropose the very same proposal that they put out a 
few weeks ago with relation to the USDA agreement and begin the 
process of promulgating those rules to be finalized sometime 
early next year; is that correct?
    Mr. Cooke. Mr. Chairman, I can answer only indirectly. I 
learned about this letter Friday and talked to Mr. Fox this 
morning, and so let me tell you my understanding. My 
understanding is that from the rules that we've seen in the 
regional office, that the silviculture provisions are not 
moving forward for the rule currently being examined, and that 
the USDA-EPA Joint Statement, which had such things as the 
moratorium--5-year moratorium on silviculture and those 
aspects--would be reformalized, but whether it would be exactly 
the same proposal that was taken out of the current rule and 
was formulated the other statement, I'm not sure. I know that 
Chuck indicated that EPA wanted to have some more discussions 
with your committee and with other stakeholders before they 
repropose that rule. So to answer your question, I do not know 
what they will propose--if indeed they do repropose it, if it 
will be exactly the same proposal that came out with the USDA-
EPA recently.
    Senator Crapo. Well, from the other provisions of Mr. Fox's 
letter, I think it's safe to assume that it's going to be 
something pretty similar to what was put out about 2 weeks or 
more ago----
    Mr. Cooke. Several weeks ago, yes.
    Senator Crapo [continuing]. Several weeks ago in the joint 
statement by the USDA and the EPA.
    Mr. Cooke. Yes, I think May 1 the joint statement was 
issued.
    Senator Crapo. Yes. It was about 6 weeks ago, then. Why is 
it that only the forestry provisions are being discussed now as 
being pulled back? We still have the same types of impacts that 
are going to occur to agriculture, and we still have the same 
kinds of considerations that have been raised by the Governors 
and by the Environmental Quality Administrators throughout the 
country with regard to the impacts on their water quality 
efforts that go to all of the other nonpoint source areas other 
than forestry. Why were these other areas not given the same 
relief?
    Mr. Cooke. Well, I don't think they're--I think they were 
trying to be in parity, Senator, with all the areas. I don't 
think there's any indication that nonpoint sources are going to 
be in a permitting regime. I thought that the silviculture 
provisions actually were somewhat misunderstood as requiring a 
permitting regime. In my view, EPA does not intend to have a 
permitting regime for nonpoint sources. If it needs to be done 
through this procedure, it would be a good procedure. I agree 
with the statements that under Clean Water Act that we don't 
have the authority to permit nonpoint sources, nor do we intend 
to. And so I think any clarification that EPA could have 
regarding that matter should be done.
    Senator Crapo. If I understand what we've been told in our 
previous hearings, there is a big disagreement between the EPA 
and some members of this committee and others in the 
agriculture and forestry community as to what is a potential 
point source. The EPA can easily say, ``We don't intend to 
require permits of nonpoint sources, but we do intend to 
redefine what are point sources.''
    Mr. Cooke. I understand. I've heard that----
    [Applause.]
    Mr. Cooke [continuing]. I've heard that concern raised, 
Senator, and all I can say is that in this region, that has not 
been our history of anything that we have done in terms of how 
it's actually applied in the ground. In my working with 
Arkansas, theirs is a very good program--their Best Management 
Practices are working--and I never did feel like that while 
that was an issue around the country, it really would ever have 
been much of a problem in Arkansas.
    Senator Crapo. Well, I had a lot of questions, and I'm 
going to ask just one more and then let Senator Hutchinson ask 
some questions. We may have several rounds of this. I want to 
ask about an issue that you just touched upon, and that is the 
fact that, as you indicate, it is not the intention of the EPA 
to impose a permit system in circumstances that it appears to 
some of us that was intended by this rule. We've had many 
occasions when officials from the EPA have testified to us that 
these dangers that are being perceived are not real. In fact, 
in your own written testimony, you indicate that same kind of 
thing--that it was not intended and that this is supposed to be 
a rule that promotes local control rather than a top-down 
management system from Washington.
    Let me give you an experience that I've had in Idaho. Maybe 
it's good that I can do this, because you aren't the 
administrator governing Idaho. We had an issue--this wasn't a 
TMDL issue under this rule, it was an issue under the proposed 
TMDL System that we already have in place. We had an issue out 
in Idaho where an entire valley was being forced to adopt a 
certain standard. You've heard of the Gold Book Standard? In 
this community, it became pretty evident that none of the 
communities along this river system would be able to meet those 
standards simply because of the background nature of the water 
which was coming from their mountains that have metals in the 
mountains. There had been mining in these mountains for years. 
The point I'm getting at is that a proposed standard was being 
enforced on the States and on the local community, and when we 
held a hearing out in Idaho to address this, the EPA officials 
who took the stand before us said, ``That standard is being 
imposed by the States, not by the EPA, and the EPA is only 
there as a backdrop in case the State doesn't do it right.'' 
And so the next panel had the State officials on it, and I said 
to the State officials, ``Well, it sounds to me like you're the 
culprits, because somebody here is imposing this standard on 
these cities and counties and the communities here, and the EPA 
tells me it's not them, it's you.'' And the response I got from 
the State was, ``Well, it is actually us, but the reason we are 
doing it is not because we want to, because we don't think that 
it's the right standard, and we think that a different standard 
that is more specifically focused on the needs of this 
community would be much better and much easier to work with, 
both in terms of cost and terms of effectiveness in water 
quality. But the EPA has told us that if we, the State, do not 
impose this Gold Book Standard, that they will declare our 
standards to be inefficient and take control of it away from us 
and impose it themselves.''
    [Applause.]
    Senator Crapo. And so the question becomes, then: When you 
talk to us about local control, isn't it true that even with 
regard to this USDA-EPA Joint Agreement, that the EPA continues 
to say to forestry and to agriculture that if the States 
control which is being granted, so to speak, by the rule does 
not satisfy the EPA, that the EPA can pull back unto itself 
control over whatever watershed or water issue is at stake 
there and impose its own rules.
    Mr. Cooke. Senator, I can only say that in the history of 
region 6 that that is not--I don't know how the other regions 
are managed, I don't manage other regions. I can just say, and 
I think Randall can also--and I still believe we do have a good 
relationship. That's not the way that we have operated here. If 
you don't operate in a partnership with your States, you're 
never going to get anything accomplished. I think that our goal 
here is to have continual access to the funding, even through 
your legislation or the Administration's proposal recognizes 
additional funding requirements by the States. I think we have 
to help develop our local expertise in our regional office to 
help the States meet those demands. So I can't say that is not 
legally impossible under the example that you gave, but if 
you'll look at the history of the way we've managed programs in 
this region, there is no basis for that occurring here, but I 
certainly can't say that that's not legally possible, as you 
know. I think trust is the most important thing that you can 
develop, and I think that over a period of time, that we have 
worked with the States well in the implementation of these 
programs, and even while we've had disagreements along the way, 
we've been able to work through them.
    Senator Crapo. I think that part of the concern from the 
States that we've been hearing from is that they have said that 
they have been working on this. In some of those areas they've 
told us they've had good working relationships with the EPA, 
and they wonder why the EPA needs to go to this new rule. But 
I'll let Senator Hutchinson have this time now.
    Senator Hutchinson. Thank you, Mr. Chairman. Mr. Cooke, did 
I hear you say in your oral testimony a moment ago that you 
never believed that the EPA had the statutory authority to 
regulate nonpoint source pollution?
    Mr. Cooke. Under the Clean Water Act, we do not have to 
have a permitting regime for nonpoint sources. And we don't. 
And we don't have----
    Senator Hutchinson. Explain to me--in your written 
testimony, you cite the court decision in the Federal Court in 
California, and you say that the court's decision found that 
the logic section of section 303(d) required that the listing 
of TMDLs were required for all impaired waters and concluded 
that ``Excluding nonpoint source impaired waters would have 
left a chasm in the statute,'' and the judge found that the 
congressional passage of section 319 in 1987 was consistent 
with the view that section 303(d) covered nonpoint sources of 
pollution. Because TMDLs were needed for the planning required 
under section 319, the decision confirms EPA's long-standing 
interpretation of the Act.
    Mr. Cooke. That's right. Let me--may I explain that?
    Senator Hutchinson. Please.
    Mr. Cooke. There's also another opinion more recently--
Senator Hutchinson. I know, but I'm curious----
    Mr. Cooke [continuing]. That amplifies this exact point, 
and here the point is that in a TMDL setting, nonpoint sources 
are part of the TMDL process. They are not exempt from the TMDL 
process. Now here is the very tricky problem--Senator 
Hutchinson. But you take statutory authority?
    Mr. Cooke. That's right. Under the--TMDL's under the Clean 
Water Act, nonpoint sources are part of the TMDL process----
    Senator Hutchinson. So do you have the authority for 
nonpoint or not?
    Mr. Cooke. You don't have the permitting authority for 
nonpoint, but they are part of the TMDL process, and that's the 
problem. You have to rely upon the States and their programs in 
order to ever reach how to solve those TMDL problems, but you 
do not reach it under the Clean Water Act through permitting of 
nonpoint sources, but they are part of the Act.
    Senator Hutchinson. By your interpretation?
    Mr. Cooke. The way I understand it, that's right.
    Senator Hutchinson. Are you, by the way, familiar with the 
record of the Ninth Circuit Court of Appeals on review and 
appeal of their decisions?
    Mr. Cooke. I am not.
    Senator Hutchinson. Well, let me just, for the record, a 
1996-97 term, 28 of their cases were reviewed and 27 of them 
were reversed. 1997-1998, 17 cases were reviewed, 13 were 
reversed. 1998-1999, 18 cases were reviewed and 14 were 
reversed. All total, since 1996, they've had an 86 percent 
reversal average. Maybe that will be the case on this decision 
as well. That seems to be their batting average. Mr. Nance, the 
Fox commitment regarding pulling silviculture out of the 
proposed rule and then reproposing a rule this fall--do you 
regard that as a sufficient change in the proposed rule? Does 
that solve the problem for forestry? Can you give me your 
opinion on that?
    Mr. Nance. Well, I think Mr. Mathis put it well in his 
testimony when he said that when they come back with the 
proposed rule, we essentially won't know what their proposed 
rule is until we hear it, so we don't know if we're going to be 
better off or not. We're 
confused with EPA not even understanding their own previous 
proposal and how it effects forestry. The forestry community in 
Arkansas saw a lot of confusion on EPA's proposal. At first, we 
understood silviculture was going to be a point source, and, 
that for some activities or for all forestry activities, we 
could be looking at a permitting process. We understand that 
through the permitting process, we could be looking at 2 to 6 
months before a forestry operation would be approved through 
the permitting process. But to answer your question, Senator 
Hutchinson, I think that the EPA needs to drop forestry as well 
as other agriculture from the proposed rule altogether.
    Senator Hutchinson. OK, they split this--so if they come 
back and propose what the USDA-EPA Agreement was and the 
guidelines in that, and then they moved forward with a forestry 
provision or silviculture provision later, that's not 
reassuring to you?
    Mr. Nance. No, Sir.
    Senator Hutchinson. So we shouldn't declare victory for 
silviculture on this issue?
    Mr. Nance. Not until we hear what the proposal will be.
    Senator Hutchinson. I know you're in forestry, but in your 
opinion, it would still leave agriculture still facing the same 
burdensome rule?
    Mr. Nance. That's the way the proposal is right now. Only 
forestry has been pulled out.
    Senator Hutchinson. Mr. Cooke, Mr. Nance just mentioned 
that this thing seemed to be a moving target, and I can 
sympathize with that. There have been a number of changes, and 
most recently the Fox letter on Friday. Is it not unusual to 
change a proposed rules in the midst of the process?
    Mr. Cooke. I really can't comment on that in terms of how 
unusual it is, this rulemaking. I really haven't been a part of 
rulemaking in relation to the water program before this. But I 
will tell you that in terms of how this region operates, I 
think it's consistent with the way we operate and that we have 
no intention of moving in any sort of permitting regime in 
relation to agriculture or silviculture.
    Senator Hutchinson. Well, but that's not what I asked. The 
process that you've gone through--I mean, the whole process 
that's established on promulgating a new rule is to ensure that 
you have adequate public comment--that you're taking into 
account public concerns. But to change a proposed rule in order 
to diffuse public concern or whatever in the midst of the 
process, wouldn't that, in all fairness, require you to start 
over, because you have changed? I mean, how do people know what 
they're supposed to comment on if you have changed it this late 
in the game?
    Mr. Cooke. Well, Senator, in any rulemaking that the region 
does, where you go out for public comment and you can respond 
to public comment, the purpose for having public comment is to 
make changes to the rules. I know when I----
    Senator Hutchinson. Not in the middle of the process, 
though.
    Mr. Cooke. But I think you're demonstrating that you're 
being responsive to the concerns that have been raised. I 
personally have been to a number of these hearings. If you'd 
ask me, I wish we had gotten to this point sooner in the 
process, certainly, but nonetheless, I think it is appropriate 
that we are here and that it is responsive to public 
participation.
    Senator Hutchinson. But you're going final in a few days, 
you have a new proposal out there now----
    Mr. Cooke. It will be proposed final.
    Senator Hutchinson [continuing]. But people in this 
audience tonight may well have attended earlier meetings where 
we were discussing a totally different proposal. Is it right, 
fair or within the law to now change your proposal without 
giving the public an opportunity to determine whether or not, 
in their minds, this is a satisfactory change to meet their 
concerns?
    Mr. Cooke. In my opinion, I don't think it's so radically 
changed that it would require us to repost a brand-new rule--go 
through the process again--if that's your question. I think 
we're being responsive to public comment.
    Senator Hutchinson. Well, I think if--how many were there, 
30,000--if you're responsive to public comment, wouldn't it be 
to pull the rule entirely as opposed to slicing it in half and 
saying, ``We're going to repropose?''
    Mr. Cooke. Some 20,000 of those comments were on the 
provision of the rule that was being eliminated, and so I think 
it is proper for that proposal to be eliminated, to repropose 
that part of the proposal if, indeed, EPA does that, and take 
comment upon that again, but not the main portion of the rule. 
You have to understand, from my perspective, from management of 
TMDLs, that issue is not the driving force of why this rule is 
needed.
    Senator Hutchinson. Well, could a farmer that had a 
confined animal operation--poultry or fish--could he, under the 
proposed rule, be subject to permitting in any circumstance?
    Mr. Cooke. Unless they were defined as a point source under 
the Arkansas regulations, no. There are circumstances under the 
CAFO regulations where you can be large enough where you can 
become a point source. I'll yield to Randall for that 
interpretation.
    Senator Hutchinson. Mr. Randall.
    Mr. Cooke. But you have to be of a certain size.
    Mr. Mathis. I believe that there are approximately, out of 
all of the poultry operations and all of the other operations 
in the State of Arkansas, it seems like there may be three or 
four that fall under the category that under EPA's regulations 
require an----
    Senator Hutchinson. And Mr. Cooke, you're saying that under 
the proposed rule, that won't change at all? There will be no 
new possibilities of permitting under the proposed rule?
    Mr. Cooke. That's not changing. You're going to look to how 
you deal with the States and how the regime is set up, and 
that's why I don't remember exactly how Arkansas works, but you 
could be of a certain size where, you know, you would fall 
under the CAPRA regulations of the State and would require a 
permit. But I don't think that's going to change from current 
practice.
    Mr. Mathis. Senator Hutchinson, I believe that EPA has 
developed the regulations for at least three of the other 
States, and the region Arkansas had its own regulations prior 
to that on permitting--general permitting process, and I 
believe that region 6 developed the general permit for other 
States in the region that did not have one.
    Senator Hutchinson. OK, apart from our region, is it your 
understanding, Mr. Mathis, that there would be any change in 
permitting requirements under the proposed rule or the 
possibility of permitting?
    Mr. Mathis. Well, I think that the possibility is there, 
but I'd have to further review the permits in the other States.
    Senator Crapo. Senator, could I interrupt and just ask a 
question along this line?
    Senator Hutchinson. Yes, Sir.
    Senator Crapo. Mr. Cooke, I'm reading your written 
testimony, beginning about two-thirds of the way down Page 8, 
and let me just read it to you. You indicate that ``No permits 
would be issued in States that now have or develop adequate 
forest water quality programs. The final rule will describe 
basic criteria of adequate programs, including appropriate best 
management practices identified in consultation with the 
USDA.'' Then you go on to state, ``Where a State has not 
developed a strong forest water quality program after 5 years, 
forestry operations might be asked to have a permit, but only 
if''--and then you list three factors--``the forestry operation 
resulted in a `discharge' from a point source (diffuse runoff 
from silviculture operations not being subject to a permit 
under any circumstance)''; No. 2, ``the operation contributes 
to a violation of a State water quality standard or is a 
significant contributor of pollutants to waters''; and, No. 3, 
``the State Clean Water Act permit authority''--which, as I 
understand it, in this case would be the EPA having taken 
control away from the State--``determined that a permit, as 
opposed to a voluntary or incentive-based program, was needed 
to assure that pollution controls would be implemented.'' Now, 
as I read what you have said here, essentially it says that if 
the EPA does not like what the State has done after 5 years, 
that the EPA can take control of the program back and begin a 
permit program if they define--if they can find what they 
define as a discharge from the point source in a silviculture 
operation, and we already know there's been a big debate about 
our disagreement with the EPA over whether they can do just 
that.
    Mr. Cooke. Let me respond. First, this provision, of 
course, would be subject to the part that has been separated 
from the final rule, as we indicated, so that as I said, that 
will be a separate part.
    Senator Crapo. Yes.
    Senator Hutchinson. Could I----
    Senator Crapo. Sure.
    Senator Hutchinson. Is that the basis for you saying that 
there was no circumstances in which there would be----
    Mr. Cooke. No. No, no, it's not. I was just pointing out, 
this is the silviculture provision that would be removed. 
That's not the basis for my previous comment. Second, I think, 
in all of our region, all of the silviculture operations and 
the Best Management Practice in forestry operations they have 
today are in very good shape and are likely to be certified 
very quickly. We don't find any of the programs here to be 
deficient.
    Senator Crapo. If everything's OK, why does the EPA 
continue to insist on putting this into position?
    [Applause.]
    Mr. Cooke. Senator, I must assume that they have problems 
someplace else in the United States where that causes them to 
give those problems, because in region 6, that's not an issue 
that we would be driven to do.
    Senator Crapo. I'm sorry, I interrupted you, Senator 
Hutchinson.
    Senator Hutchinson. No. Thank you. I appreciate that. Feel 
free to do that at any point. But, Mr. Cooke, the rule, as I 
understand it, would allow the EPA to designate AFOs--AFOs or 
CAFOs in certain situations, while prior to the rule, the 
proposed rule, only the State with its delegated authority 
could designate an AFO or a CAFO.
    Mr. Cooke. It depends on where the State's delegated 
program is. In Arkansas that would not be the case, but in 
Oklahoma, New Mexico and potentially Texas, it would. Now----
    Senator Hutchinson. According to the CRS, these revisions 
are expected to expand the regulatory coverage of AFOs, which 
are defined as CAFOs and are thus subject to NPDES permitting 
and enforcement. So, in fact, Mr. Cooke, the proposed rule 
could result in permitting that heretofore could not have 
happened.
    Mr. Cooke. I may yield to my Water Division Director. I did 
not think that was in this case. Bill, if you have anything to 
add----
    Mr. Hathaway. The only thing I could add would be that if I 
understand the question, right now the Agency in a delegated 
State has the responsibility to only respond to permits that 
are proposed by the State. In other words, we don't have the 
ability to propose a permit. But if a State proposes a permit, 
then we can respond, and then if we don't like what we hear 
from the State, we can withdraw it and make it a Federal 
permit. Under these regulations, there is a possibility that we 
could add to that responsibility and actually propose a permit 
for a facility that the State had not proposed. So there is a 
nuance here where there could possibly be an addition of a 
permit. That's not really clearly defined to me, and I'm not 
really sure how that rule would apply in the final, because 
we've not had any application.
    Senator Hutchinson. Let me quote again from the 
Congressional Research Service, which is, as you know, the 
highly respected nonpartisan branch--study research branch of 
Congress. They say that this proposal would apply to Animal 
Feeding Operations currently not designated as Concentrated 
Animal Feeding Operations, since CAFOs already are subject to 
NPDES requirements. It also would apply to aquatic animal 
production facilities, hatcheries or fish farms which confine 
aquatic stock in a man-made pond or tank system. And then in 
the footnote regarding the CWA regulations that govern CAFOs, 
these revisions, the proposed rule, are expected to expand the 
regulatory coverage of Animal Feeding Operations, which are 
defined as CAFOs, and are thus subject to NPDES permitting and 
enforcement. Now, if, in fact, whether in this region or 
elsewhere, that such permitting resulted, what--and I will 
grant, because I think you will probably contend, that these 
would be extreme situations, but farmers aren't trained 
biologists or chemists, they don't have the money to hire such 
professionals, what kind of penalty would they face under 
current EPA fines?
    Mr. Cooke. Let me ask Bill to help me answer that question 
from his experience in the region. But let me clarify your 
question. Is this a situation where we are requiring a permit 
from someone that hasn't had one, is that what you're asking? 
And what kind of penalty that they're required as a result of 
not having a permit, is that what you're----
    Senator Hutchinson. I assume that this would be in 
violation. The penalty structure is for anyone found in 
violation, so the failure to get a permit or not granted a 
permit, I suspect that operation then would be considered in 
violation of the law. I think it's an area that there hasn't 
been a whole lot of attention to in the whole debate that's 
gone on in the last few months about what potentially these 
kinds of operations could face, because the fine--in fact, even 
imprisonment up to a year in jail is permitted, $2,500 to 
$25,000 per day of violation. So that we're not talking about 
voluntary Best Management Practices, we're talking about a very 
heavy-handed kind of enforcement mechanism. Mr. Hathaway. Those 
provisions, Senator, if I understand your question, would be 
once you come under the permit program, then you come under the 
enforcement program and are subject to the----
    Senator Hutchinson. Right. We've already established that 
we're going to have expanded permitting. Mr. Hathaway. Right. 
I'm talking about an individual--a farmer or whatever. Once 
they were in the permits program and had a permit, then they 
are subject to the enforcement program, whereas in the Best 
Management Practices program, they would not be subject to the 
enforcement program if that's the distinction that you're 
asking about.
    Senator Hutchinson. Mr. Cooke.
    Mr. Cooke. I don't necessarily agree that the expansion 
that you described--I mean, I can't dispute what you've read 
from the Congressional Research Service, but in what we've seen 
in terms of guidance and how this is operated with region 6, I 
don't believe----
    Senator Hutchinson. Well, it's disagreement here and 
disagreement with the Congressional Research Service. Is there 
any wonder that there's some bit of confusion among the public-
at-large and those that are involved in silviculture and 
agriculture operations in Arkansas? And I guess that's one of 
the points I want to emphasize is that this whole process has 
been mismanaged; that it is no wonder that there is a lack of 
trust in the EPA when we have a rule that changes, is modified, 
retreats are made and yet the threat is issued that you're 
going to come back with the same rule. One last question and 
I'll yield to the Chairman. Mr. Cooke, your Agency reports that 
nearly 40 percent of surveyed water bodies remain too polluted 
for fishing, swimming and other designated uses. The 
interesting thing is that those numbers, though, represent 
rivers and lakes surveyed by State monitoring programs 
accounting for about one-third of all waters. Since States 
would be required to monitor, under the proposed rule, even 
more bodies of water under the EPA's proposal, it seems to me 
that that puts the States in an even more unwinnable position, 
that you're giving them more to do, with the threat that, ``If 
you don't measure up, then the EPA has the power to step in.'' 
Without providing the kind of resources, it is, in fact, an 
unfunded mandate?
    Mr. Cooke. Well, Congressman, let me go back to my 
testimony earlier about the consent decrees that were already 
in this State. The reality is that the job that we do already 
outlined by those decrees is so huge in terms of negotiations 
between us and Randall, what we need to do, that takes 
precedence virtually about anything else that's going to occur 
in the next 7 years or 10 years under these rules. And as a 
practical matter of what will really occur in Arkansas, that 
outlines it, and we do need more resources, there's no 
question.
    Senator Hutchinson. And that's exactly what Senator Crapo's 
bill does.
    Mr. Cooke. I think it's a wonderful provision.
    Senator Hutchinson. And do you not think that the 
requirement for a National Academy of Science study would be a 
good thing to do as well?
    Mr. Cooke. I have a concern about that for this reason: 
That under these judicial decrees, that if that time delay 
inhibits the ability of the State and/or EPA in conjunction 
with the State to do the TMDLs pursuant to these consent 
decrees, I think we would have a significant problem.
    Senator Hutchinson. It's just perplexing to me that you 
say, ``Things are going so well, that we're getting such good 
compliance that we've got a great performance with Best 
Management Practices,'' it's just like Senator Crapo said, 
``Why, then, the urgency that you can't afford 18 months to 
study to provide good science and to ensure that what you do is 
in fact based upon science and not 30 lawsuits that may have 
been filed?''
    [Applause.]
    Mr. Cooke. Two reasons. From my perspective, two reasons: 
No. 1, I do think that it would inhibit our ability to meet the 
court-ordered mandates that we already have in Louisiana, New 
Mexico and Arkansas; No. 2, every single schedule that we have 
where we've been sued has been shorter than 15 years. I believe 
that I'm going to be facing litigation in the State of Texas. 
If I have this rule in place, it will almost assuredly give me 
the ability to keep that schedule longer than what we were able 
to get in Arkansas and Louisiana. So I see it, as a practical 
matter, as a bulwark for litigation to give the State more time 
than we would otherwise give.
    Senator Hutchinson. Mr. Chairman.
    Senator Crapo. Thank you. We're already running over, but I 
do have just a couple more questions, Mr. Cooke. Are the States 
doing a good job right now of the Best Management Practices?
    Mr. Cooke. Yes--well, States in my region. I can only speak 
about this region.
    Senator Crapo. I understand. So at least for your region, 
you don't see a reason to change the Best Management Practice 
approach to nonpoint source pollution activities?
    Mr. Cooke. It seems to be working quite well in these 
States.
    Senator Crapo. You indicated that the rule was going to be 
``proposed final'' rather than ``final.'' Could you explain 
what you meant by that?
    Mr. Cooke. What is the status?
    Mr. Hathaway. As far as I know, it's a proposed final rule.
    Senator Crapo. ``Proposed final,'' meaning if the EPA meets 
its deadline, it's own self-imposed deadline of June 30 and 
issues a proposed final rule at that time----
    Mr. Cooke. It goes to OMB.
    Senator Crapo [continuing]. It goes to OMB, and then OMB 
has its ordinary time for review?
    Mr. Cooke. ``Proposed final,'' I meant from proposed final 
to go to OMB, and then it has its own time for review.
    Senator Crapo. And then once OMB signs off, the rule 
becomes enforceable?
    Mr. Cooke. That's right.
    Senator Crapo. And is it not correct that the EPA has 
actually negotiated with OMB to shorten the timeframe for OMB's 
review?
    Mr. Cooke. I can't speak to that. I don't know.
    Senator Crapo. I believe that's the case, but----
    Mr. Cooke. Could be. I can't----
    Senator Crapo. I recognize that you may not be aware of 
that. You also indicated that, in response to Senator 
Hutchinson's questions, that the changes that the EPA has been 
making in the proposed rule over the last few months--which I 
might indicate coincided with the congressional hearings and 
the legislation imposed in Congress and the uproar around the 
country--these changes were not so radical that they so 
dramatically changed the rule that you had to go back and start 
all over, because it's now not what it originally was.
    Mr. Cooke. Right.
    Senator Crapo. It seems to me that the EPA has a bit of a 
dilemma here. If it maintains that the changes it's making in 
the rule are not significant changes in the legal sense that 
would require them to go back and start over again because it's 
really now a new animal or a new entity, then they're admitting 
that they really aren't planning on changing a whole lot in the 
rule. Or if they are saying that ``We've changed it and 
addressed all these concerns to the point that we are truly 
going to take silviculture out and we're going to deal with the 
other problems that have been raised,'' that they have made 
significant and substantial changes. Otherwise, the EPA's 
asking us to assume that all of this concern around the country 
can be solved with basically minor, little, insignificant 
changes in their rule.
    Mr. Cooke. Now, I don't concur with that, for this reason: 
I think the majority of information that we received in region 
6--obviously these comments went to headquarters----
    Senator Crapo. Right.
    Mr. Cooke [continuing]. But from what we see, 95 percent of 
it was on the silviculture and forestry operations. It would be 
my view that by severing that portion of it----
    Senator Hutchinson. Excuse me, what percentage?
    Mr. Cooke. I understood like 80 percent--from what I heard, 
80-90 percent of what I heard was on the silviculture and 
forestry operations are the comments that I heard, I personally 
heard, and I didn't receive the ones in Washington. And so from 
my experience, it would be prudent to sever that particular 
provision of it, and because the remainder of the rule was not 
what was receiving the great deal of preponderance of comments 
from the public, and so therefore I think you can, through the 
public process, make the changes that responds to public on the 
main body of the rule, and I think it is well founded to severe 
the silviculture provisions and deal with them separately if at 
all.
    Senator Crapo. It seems to me that the one thing that we 
may be able to agree on with regard to Mr. Fox's letter, saying 
that he's going to separate the silviculture provision of the 
rule from the current rule, is that at least he's delaying that 
part of it and starting the process over again, as we have been 
asking him to do for months. The problem that I see is that he 
is simply taking that out and reinstituting the very same thing 
that is now there and is now causing all of the concern and 
stating that ``What I'll do here is take out the part that is 
causing the biggest part of the problem, go ahead with the rest 
of it, maybe divide and conquer here, and then reinitiate it.''
    [Applause.]
    Mr. Cooke. I can't speak to that. As far as I'm concerned, 
the things that I've testified to Senator Hutchinson's 
questions that are of most concern to me are in the main body 
of the rule, not the silviculture portion of it, so----
    Senator Crapo. But isn't it the case that if the EPA 
successfully separates out the silviculture provisions of the 
rule and gets the remainder of the rule enacted, that then 
those who are not engaged in the silviculture community have 
seen the rule enacted against them. There is a lot of objection 
to that, and those in the forestry community are now singled 
out. They're the only ones left. The EPA is then proceeding 
with them being the last ones on the chopping block, so to 
speak, and the rest of the people who were with them in this 
fight are already under the rule, and it should be a much 
easier time from a strategic point of view, wouldn't it be, for 
the EPA to then take on the forestry community without the 
other allies that they have?
    Mr. Cooke. Again, I can't speak to that. In this region, 
the silviculture concerns that were raised were not a problem 
that we have to address in this region. Therefore, whether or 
not that provision of the bill or the rule is ever finalized 
will make no difference in how this region deals with these 
issues.
    Senator Crapo. But at least we can agree that what the EPA 
has told us that it's going to do is to separate out the 
silviculture provisions and immediately repropose them.
    Mr. Cooke. From talking with Mr. Fox this morning, I don't 
know whether that's true, Senator. I know that he says he will 
repropose them, but he also indicated he wanted to discuss with 
the committee before he did that.
    Senator Crapo. All right. That's my understanding. And I 
realize you're having to interpret this letter as are we, but 
it is my understanding that that's exactly what is being 
proposed. One last question: You've also indicated that 
nonpoint sources that have to be included in the TMDL 
calculations, but that they cannot be subjected to a permit 
requirement.
    Mr. Cooke. That's correct.
    Senator Crapo. Now, here's the question that I think begs 
an answer: If the EPA is so intent on including the nonpoint 
sources in the entire calculation, as you've testified, but has 
no authority to do anything about it, if they find that the 
nonpoint sources are a source of concern in the water quality, 
then what is the EPA going to do? In other words, let's assume 
that your position prevails in court and the EPA is given the 
authority under the current Clean Water Act provisions to begin 
calculating the nonpoint source contribution to the water 
quality situation in our country, and it is determined by the 
EPA that the nonpoint source segment is a problem, does the EPA 
have any authority at that point to do anything?
    Mr. Cooke. That's why the development of the BMPs are so 
important, and we have to rely upon the State using its 
programs to get there. That's why it's a partnership, Senator. 
On those issues on nonpoint, it has to go through the State 
programs to accomplish that. It's not going to be resolved 
through a Federal permitting regime.
    Senator Crapo. I understand your argument, and if it were 
that clean, if you will, so that at that point the EPA would 
then have to go to the States and say to the States, ``You have 
jurisdiction over a piece of this problem, we'd like to work 
with you to try to solve it,'' that would be something that I 
think the public could probably live with. But instead, as your 
own written testimony states, at that point, if the EPA 
determines there's a problem, they can simply take control away 
from the States.
    Mr. Cooke. Well, the 319 program that we have obviously is 
the way we direct dollars through the State and with the State 
toward nonpoint sources, but I submit to you, Senator, that the 
taking away a program in relation to a nonpoint source issue 
and the full difficulty of all the programs that we have is 
unrealistic. It has not occurred anywhere in this region, and 
I'm not aware it's ever occurred in the United States on those 
facts, and so while I can't deny that that is a legalistic 
possibility based upon, you know, what's there, I mean, it is--
the revocation of a federally mandated delegated program is 
always a possibility if the EPA thinks that the delegation has 
failed. But in practical fact, it hasn't occurred.
    Senator Crapo. Well, thank you. We are well over time now, 
and----
    Senator Hutchinson. Could I just make a final statement?
    Senator Crapo. Oh, yes, you definitely may.
    Senator Hutchinson. I want to say, Mr. Mathis, that if it's 
a partnership, you're very much the junior partner.
    [Applause.]
    Senator Hutchinson. I caught one phrase that Mr. Cooke made 
in his testimony, that the justification that I heard him 
giving for this rule is to forestall litigation. I don't think 
that is adequate justification, and the idea of 18 months 
(applause) of scientific study and greater resources for the 
States, I think, makes a great deal of sense, and I applaud 
Senator Crapo's leadership in this legislation.
    [Applause.]
    Senator Crapo. And thank you. We thank you all for being 
here, and Mr. Cooke, we do know that it's not fun to go through 
these kinds of things, but it's not fun for the folks to have 
to face these kinds of proposed rules, either, so we'll try to 
continue working together to find a solution.
    Mr. Cooke. Thank you, Senator. We'll be available for more 
questions should you have them.
    Senator Crapo. Thank you. We excuse this panel, and now we 
would like to call up the second panel. While they are coming 
up, I will announce to the audience the makeup of this panel. 
First, is Mr. Hank Bates of the Sierra Club from Little Rock, 
AR. Second, is Mr. Christopher Hart, Senior Wildlife Biologist 
of The Timber Company from Brandon, MS. Third, is Mr. David 
Hillman, president of the Arkansas Farm Bureau from Little 
Rock. And fourth, is Mr. Vince Blubaugh, principal of S--I'm 
going to have to read this--SBMA Associates, water consulting 
firm, and also someone who can provide us some expertise on 
some of these issues that we are dealing with statutorily. If 
I've massacred any of your names, please excuse me--mine gets 
massacred a lot, too, so you can know that I sympathize with 
you. Gentlemen, I assume that each of you heard the 
instructions earlier. Please--especially now that we are 
already past time dramatically--I'd like to ask you to please 
try to limit your oral testimony to 5 minutes so that we can at 
least have a little bit of time for questions of you, and we'll 
begin immediately with Mr. Bates.

     STATEMENT OF HANK BATES, SIERRA CLUB, LITTLE ROCK, AR

    Mr. Bates. Thank you, Senator. My name is Hank Bates. I'm 
appearing on behalf of the Arkansas Chapter of the Sierra Club. 
Welcome to Arkansas, Senator Crapo.
    Senator Crapo. Thank you.
    Mr. Bates. I'd like to thank all of you for inviting me. 
Senator Crapo, I know you're on a tight schedule, but if you 
have time, I'd recommend a detour if you're flying back through 
Little Rock. We have an Aerospace Education Center near the 
airport, and we have an Imax Theater there, and before every 
Imax film they show, they show a short Imax film on Arkansas, 
and it's about 5 minutes long--lots of beautiful shots from a 
plane swooping down over the Ozarks and the Ouachita, the 
Arkansas River Valley, the White River, the Mississippi River 
Valley--and I think that film exemplifies how Arkansans are 
proud of our natural resources. I think we all are from all 
walks of life, everyone in this room. We call ourselves ``The 
Natural State,'' put it on our license plate, and I believe 
most Arkansans want to preserve those natural qualities of the 
State. I also believe that most Arkansans want to clean up the 
portions of the State that can't make the film--the ones that 
aren't doing well, including the thousands of miles of polluted 
rivers and streams. And I believe that the TMDL program is a 
critical component of cleaning up those streams. The EPA has 
called it ``the technical backbone of watershed planning.'' It 
gives us the information to make long-range planning decisions, 
and my concern with your bill is that I'm afraid it might delay 
implementation of the TMDL program that has already seen too 
much delay. And I see your bill as part of a general opposition 
to the TMDL program. I'd like tonight, with the short time I 
have, to step back and look at the big picture and the way that 
we view the TMDL program and see where we have common ground. 
From my perspective, there are at least two big 
misunderstandings and certainly within the general public on 
the TMDL program, and I've heard it expressed in the media and 
seen it at some of the earlier public meetings in Arkansas. One 
is that the TMDL program will affect all forestry and 
agriculture operations throughout the State, when in truth the 
program's only going to impact a small minority. It will only 
affect those operations that are discharging into a polluted 
stream--a stream not meeting water quality standards--and that 
are contributing to that pollution problem. So if a timber 
company, for example, is following Best Management Practices 
and is protecting that stream, the TMDL program will not affect 
that company. Second, there's this concern that the program 
will require every timber company to get a permit. I've heard 
it said that it's going to--for any type of activity, a permit 
will be required. Now, in general, the TMDL program is not 
about permits. It's about information, as I see it. And I 
understand that there was the one portion of the proposed regs, 
including the part on silviculture, it's now at least been 
proposed to be withdrawn, that did have something to do with 
permits in isolated situations, but other than that, the TMDL 
program is about a process for gaining solid scientific 
knowledge about what is polluting a water body and a framework 
for allocating the responsibility to restore it. Other than 
that one small portion that I now see being--as I understand, 
it's going to be withdrawn, so I'm basically kind of ignoring 
it, I mean the ground's shifting beneath our feet, but for the 
purpose of what I'm saying today, I'm kind of ignoring the part 
that you-all were referring to happened last Friday, with Mr. 
Fox's letter. But in general, the TMDL program doesn't provide 
any additional regulatory tools to ensure that once you have 
this information, people follow through. The State, which will 
be the primary enforcement entity, will have to rely on the 
existing NPDES regulatory program and the voluntary BMPs. But 
what the TMDL program will give us is a better understanding of 
which streams are polluted, why are they polluted, and a 
blueprint or a framework for all the stake holders in the 
watershed to come together and use that information, to use a 
combination of NPDES permits for those types of facilities for 
which there is regulatory power, and Best Management Practices 
for the nonpoint sources, and come up with an implementation 
plan to restore the health of that watershed. Now, I know 
there's a lot of concern about the economic burden of the TMDL 
program, and from my perspective, it's not the TMDL program 
that causes the burden, it's the pollution that causes the 
burden, and I believe that if we buy into a TMDL program and we 
run it well and if folks cooperate, in the long run it can save 
the State money, because it will give us a better understanding 
of what's happening to our watersheds so that we can use the 
limited resources wisely to address what are the true problems 
that we have in the watershed. I think--and I said Arkansans 
are pressing--my little red light's on, so I'll try to finish 
up here. I think, you know, said Arkansans are very proud of 
their State. I also think they believe in taking responsibility 
for their actions. I think that's why most--as I understand the 
statistics, in the timber industry, for example, most folks are 
following Best Management Practices. I think that we can move 
forward with a TMDL program that relies on a combination of the 
Best Management Practices with the current NPDES regulatory 
system. I think as we move forward in that and we get a better 
understanding of the watershed, I think people will take 
responsibility for their actions and we can distribute the 
burden fairly among all the contributors to the pollution 
problem. That's my vision, my hope for what the TMDL program 
could be.
    Senator Crapo. Thank you very much, Mr. Bates.
    Mr. Hart.

 STATEMENT OF CHRISTOPHER HART, SENIOR WILDLIFE BIOLOGIST, THE 
                  TIMBER COMPANY, BRANDON, MS

    Mr. Hart. Senator Crapo, Senator Hutchinson, my name is Kit 
Hart. I'm senior Wildlife Biologist for The Timber Company, 
which is responsible for the timberland assets of Georgia 
Pacific Corporation. I appreciate the opportunity to present my 
testimony today on behalf of the company and on behalf of the 
forestry community. I will touch on the water pollution program 
Enhancement Act of 2000 or S. 2417, and I will touch on EPA's 
August 23 proposed regulations to revise the TMDL or Total 
Maximum Daily Load and NPDES, National Pollutant Discharge 
Elimination System programs under the Clean Water Act. My 
comments related to August 23 proposed regulations are valid in 
the context of promulgating the existing rule or redevelopment 
or reproposal of that rule. I know that you're already 
intimately familiar with the August 23 proposed regulations so 
I won't go into detail, but it is worth reiterating that the 
proposed regulations amount to a reinterpretation of the Clean 
Water Act. EPA has proposed to eliminate silvicultural 
activities from categories as nonpoint sources. Instead, EPA 
proposed to redefine them as point sources. The proposed rule 
would give EPA and NPDES authorized States the authority to 
designate silvicultural activities as point sources requiring 
NPDES permits in certain situations. We firmly believe that 
forestry activities are nonpoint sources, and there is no legal 
or statutory authority for EPA to revise the regulations by 
eliminating the nationwide recognition of forestry as a 
nonpoint source. Every State with significant forest management 
activities has developed Forest Best Management Practices or 
rules and submitted them to EPA under the section 319 nonpoint 
source program. EPA's own data reveals that these programs are 
working. Silvicultural inputs are declining, and forestry is a 
minor cause of impairment across the country. The proposed 
rules would unnecessarily interrupt mutually important progress 
toward reaching the goals of the Clean Water Act and fishable, 
swimmable waters. It's plainly evident, from the reaction by 
the majority of stake holders--State agencies, State water 
quality agencies, Governors and others--that the proposed rules 
were formulated without the advice and input of those stake 
holders who would ultimately be responsible for implementing 
them. I would like to acknowledge that EPA and Chuck Fox letter 
of June 8 indicates that if the rules are reproposed that they 
will engage the forestry community and other stake holders 
extensively, and we need to hold them to that promise. Although 
the forestry rules may be on hold for the time being, there are 
better ways to address the issues of clean water. Section 319 
programs need greater support. We need greater cooperation 
among multiple State agencies engaged in nonpoint source 
activities. More partnerships with private landowners and stake 
holders and better dialog between EPA regional offices and 
States to make water quality improvements happen. This is 
exactly what S. 2417 does. The bill recognizes that State 
nonpoint source programs are underfunded and increases funding. 
Specifically, the bill increases funding for section 106 of the 
Clean Water Act in order to collect reliable monitoring data, 
to improve State lists, and quite frankly, to focus resources 
where real problems exist so that people can roll up their 
sleeves and go to work. Even more importantly, S. 2417 
increases funding under section 319 and earmarks a portion of 
those dollars to be used on the ground to improve water quality 
by private landowners. Another important element of S. 2417 is 
that the National Academy of Sciences is to prepare a report on 
TMDL development, cost of implementation, and exploration of 
alternatives--another important need. And finally, the bill 
establishes a pilot program for EPA and States to work together 
to review and compare State programs to implement innovative 
and cooperative partnerships. This is extremely important, 
because there are many good examples of cooperative 
partnerships that are efficiently addressing and improving 
water quality that can serve as models for others, and I would 
recommend that in any such effort, there's regional diversity 
across the country in designing a strategy for EPA to work with 
States and look at programs in a variety of topography, 
climate, soils and geography and social-political environments. 
That concludes my remarks.
    Senator Crapo. Thank you very much, Mr. Hart.
    Mr. Hillman.

 STATEMENT OF DAVID HILLMAN, PRESIDENT, ARKANSAS FARM BUREAU, 
                        LITTLE ROCK, AR

    Mr. Hillman. Good evening. My name is David Hillman. I'm a 
farmer from over in the eastern part of the State at Almyra. 
I'm also president of Arkansas Farm Bureau Federation, and 
that's the hat that I'm going to be wearing tonight when I'm 
here. Arkansas Farm Bureau is very interested in this program. 
We have over 216,000 family members in Arkansas. We've had 
three meetings around the State since January on the TMDL 
proposed regulations. Those have been attended by over 8,000 
concerned citizens just in the State of Arkansas alone. In 
August, when EPA proposed these changes, I thought, ``They 
can't do that. They don't have the authority to do that.'' And 
these proposed regulations have the potential to give EPA the 
power to take over State land use in this great State of 
Arkansas. EPA's TMDL proposal also enables EPA to require their 
review and approval or disapproval of the State's list of TMDL 
streams. Having reviewed the EPA's proposed regulations and the 
current law, we've got serious concerns over many of these 
proposals. Congress designed the TMDL program in section 303 to 
focus on waters impaired by point sources. Congress enacted 
section 318 to reduce the effects of nonpoint source runoff for 
agriculture, silviculture and other land use activities. These 
proposed regulations that EPA is trying to do lists nonpoint 
source impaired waters. They propose to develop TMDLs for these 
nonpoint source waters and to establish implementation plans 
for nonpoint source impaired waters. In other words, the 
proposal provides for Federal land use regulation, plain and 
simple. I like questions that you can answer with ``Yes'' or 
``Noes,'' and some government bureaucrats don't seem to know 
that there are some questions that can be answered with ``Yes'' 
or ``Noes.''
    [Applause.]
    Mr. Hillman. Congress designed and passed this legislation 
to treat point source and nonpoint source differently for a 
very good reason. If you stop and think about it, point source 
is something you can define. It is a pipe. It is something that 
runs into a stream. It's something that can be controlled. But 
nonpoint source, you can't control it. You know, farmers like 
to think they're good, but we can't decide when it's going to 
rain and how much it's going to rain. We might be doing 
everything we can and the Lord decide to send a 6-inch rain and 
it's going to mess those things up. All four components of the 
TMDL--Total Maximum Daily and Load--imply that there is a 
constant controlled way to deal with this issue. None of those 
exist in agriculture. None of those exist in silviculture. None 
of those exist in aquaculture. We depend too much on nature. 
But I'm getting off the point here. The proposed regulations 
unlawfully allow EPA to designate nonpoint sources. It's plain 
and simple. It's not a hard question to answer. The answer is 
``Yes, it does.'' If this regulation goes into effect, it's 
going to affect every one of us that farm for a living. It's 
easy for me to see that. Over the past decades, farm and ranch 
families have achieved extraordinary conservation gains through 
voluntary incentive-based programs to conserve fragile soils, 
wetlands, protect water quality and wildlife habitats. We have 
always done the right thing--maybe not for the reasons that 
other people want us to, but because it's our land. It's our 
heritage. It's our reason for living. It's our reason to pass 
on to our children something that's better than it was when we 
got it. We're willing----
    [Applause.]
    Mr. Hillman. We're willing and able to do these things. All 
we ask is that you show us what the right thing to do is. Give 
us the opportunity and the resources to do it with, and we'll 
be glad to do it. And thank you.
    [Applause.]
    Senator Crapo. Thank you very much, Mr. Hillman.
    [Applause.]
    Senator Crapo. Mr. Blubaugh.

  STATEMENT OF VINCE BLUBAUGH, G.B. & MACK AND ASSOCIATES, EL 
             DORADO CHEMICAL COMPANY, EL DORADO, AR

    Mr. Blubaugh. Thank you. Greatly appreciate it, Senators. 
My name is Vince Blubaugh, and I'm a principal with G. B. Mack 
& Associates, an environmental consulting firm which is located 
in Bryant, AR. On behalf of my client, El Dorado Chemical 
Company, I greatly appreciate the opportunity to present our 
views on S. 2417, Water Pollution Program Enhancements Act of 
2000. Since the passage of the Clean Water Act, we have seen 
the evolution of its programs go from the development of 
effluent guidelines for point sources to ensure national 
consistency among dischargers to the derivation of extremely 
stringent water quality-based limitations which require point 
sources to spend millions of dollars to meet new levels of 
treatment under their NPDES permits. Now, with the advent of 
the TMDL program requirements, there is a recognition that 
point source controls are not the only solution to water 
quality problems in some situations. However, the 
implementation of the TMDL program has often advanced the 
requirements beyond the knowledge and with the resources of the 
regulatory agencies involved in the process. Arkansas is a case 
in point. The Arkansas Department of Environmental Quality is 
recognized nationally by its peer agencies as a leader in the 
protection of water quality. Through such programs as 
development of the ECO region standards, first in the country 
to ever have those, toxicity testing, which they put on 
numerous point source dischargers, maintenance of a 
comprehensive ambient water quality monitoring program, which 
is designed to obtain real world data concerning the condition 
of their Arkansas' waters. The Agency's efforts are to be 
commended and has been very successful in addressing water 
quality issues in the State, especially in light of the limited 
resources that it has. One of the keys to PC&E or ADEQ success 
has been its ability to address problem areas as it has 
determined and in timeframes that allowed the department to 
development sound technical approaches. An example would be the 
ECO region research, which among other things completely 
revamped the Dissolved Oxygen Standards in the State of 
Arkansas, thereby resulting in real world, reasonable 
permitting requirements on municipal and industrial point 
sources, but this was a multi-year process, taking 
approximately 5 years from the initiation of the field studies 
to regulatory finalization. A whole lot of work went into it--
very, very field-intensive work. Yet it provides a good 
parallel as to how the 303(d) or TMDL process should be 
conducted to ensure a technically sound cost-effective 
approach. The S. 2417 correctly identifies many of the problems 
involved in the implementation of the TMDL program across the 
country. Some of the noted deficiencies are insufficient State 
resources to manage the program and the lack of sound science 
and water quality monitoring data to properly implement the 
program. All of these are quite problematic and can result in 
technically unsound, unrealistic control strategies, which will 
not achieve better water quality throughout the Nation. The 
proposed legislation offers a moratorium on the finalization of 
EPA's final TMDL regs, pending studies by the National Academy 
of Sciences on many of the technical issues contained therein. 
This at a minimum should be done. In addition to this, we would 
recommend that the committee consider broadening the moratorium 
to address the current TMDL program requirements. This is 
because factors such as artificially short implementation 
timeframes due to court orders and budgetary considerations 
will result in technically unsound TMDLs being imposed on both 
point and nonpoint sources. We also recommend that 
consideration be given to adding provisions to allow the States 
flexibility in receiving the appropriation set out in the bill. 
This is because due to State budgetary timeframes, State 
agencies may not be able to direct their resources in order to 
maximize the use of such funding. In addition, we have great 
concern that the technical tools needed to create valid TMDLs 
will not be available and that unsound science be utilized in 
order to meet artificial regulatory and fiscal considerations.
    [Applause.]
    Mr. Blubaugh. In conclusion, we appreciate the opportunity 
to make these comments and appreciate the work of the committee 
to address this extremely important issue. The TMDL program is 
evolving, and anything that can be done to ensure a more 
systematic technical evolution is warranted. S. 2417 is a very 
good start in that direction. Thank you very much.
    Senator Crapo. Thank you very much, Mr. Blubaugh.
    [Applause.]
    Senator Crapo. We just talked up here, and we're going to 
try to extend this hearing for about 15 minutes beyond 8:30, so 
both Senator Hutchinson and I will have about 10 minutes of 
questioning of this panel, and Senator Hutchinson, why don't we 
go ahead with you first?
    Senator Hutchinson. Thank you, Mr. Chairman. Mr. Blubaugh, 
do you believe the Best Management Practices in Arkansas are 
working well?
    Mr. Blubaugh. Yes, I do.
    Senator Hutchinson. Mr. Hillman.
    Mr. Hillman. Yes, Sir.
    Senator Hutchinson. Mr. Hart.
    Mr. Hart. Yes.
    Senator Hutchinson. Mr. Bates.
    Mr. Bates. In most instances.
    Senator Hutchinson. And I think that Mr. Cooke testified 
earlier basically the same thing: It's working well. Mr. Bates, 
in your oral statement--and by the way, thank you very much for 
being--all of you--excellent testimony. It's been a very 
positive contribution, and I thank you. But you commended 
Arkansans for their efforts at Best Management Practices, you 
praised the responsibility of Arkansans, you just said you 
thought that they were working in general very well. Did not 
your organization, Sierra Club, file suit against the State of 
Arkansas?
    Mr. Bates. I represented five different organizations in 
that lawsuit: Sierra Club, Arkansas Fly Fishers, International 
Federation of Fly Fishers, Save Our Streams, and Crooked Creek 
Coalition.
    Senator Hutchinson. Did you say Sierra Club was one of 
them?
    Mr. Bates. Right, one of them.
    Senator Hutchinson. And technically the----
    Mr. Bates. Go ahead.
    Senator Hutchinson. Your national--the Sierra Club, the 
national Sierra Club organization proposes this proposed rules. 
Can you explain to me why?
    Mr. Bates. Proposes--I'm sorry, what----
    Senator Hutchinson. The TMDL proposed regulations.
    Mr. Bates. The TMDL--the proposed regs? There's parts of 
the proposed regulation that the national organization likes, 
and there's parts they don't like. I think one of the main 
concerns is the strict, you know, 15-year across-the-board time 
line for completions of the TMDL programs.
    Senator Hutchinson. Are you representing Sierra Club 
tonight?
    Mr. Bates. Yes.
    Senator Hutchinson. Are you testifying for or against the 
proposed rule?
    Mr. Bates. I thought why I was here to talk mainly about 
the Senate bill, to----
    Senator Hutchinson. I gathered from your testimony that you 
supported the proposed TMDL rule.
    Mr. Bates. Oh, OK. I support the TMDL program. TMDL 
programs have been around, and regardless of whether the 
proposed rule is passed or not----
    Senator Hutchinson. Do you have a position on the proposed 
rule?
    Mr. Bates. I'm not the national spokesperson on the 
proposed rule, so I----
    Senator Hutchinson. Excuse me?
    Mr. Bates. I'm not the national spokesperson on the 
proposed TMDL rule. What I can tell you about is how I think 
the proposed rule would work in Arkansas and talk mainly about 
local Arkansas issues. I'm just more comfortable with that. I'm 
an Arkansas lawyer, I'm not a Washington----
    Senator Hutchinson. It's my understanding the Sierra Club 
nationally opposes this rule, because they do not believe this 
rule goes far enough. So I think it--I don't want to be 
disingenuous about supporting a rule or proposing a rule. Mr. 
Hillman, as of Friday, we are told by Mr. Fox of the EPA that 
silviculture is going to be exempted from this proposed rule. 
As the Arkansas president of the Farm Bureau, what are your 
thoughts on why farmers across this State should not be given 
the same treatment?
    Mr. Hillman. I guess because we took the emphasis from the 
timber industry because they were the ones that were going to 
be affected most and first, and you kind of grease the wheel 
that's squeaking the loudest first.
    Senator Hutchinson. Do you think----
    Mr. Hillman. And had we known that they were going to--once 
they got all this flack on the timber industry, they would just 
move it over to the livestock industry, then we'd have had all 
the livestock folks here, and we got a few poultry farmers here 
tonight.
    Senator Hutchinson. They exempted silviculture. Do you 
think they ought to exempt farmers from this as well--
aquiculture, poultry----
    Mr. Hillman. The answer is ``Yes,'' and let me tell you 
why. This country has done quite well for 200 years without 
this dadgummed regulation.
    [Applause.]
    Mr. Hillman. And surely we can wait another 18 months till 
we get some science on it whether we need it or not.
    Senator Hutchinson. Do you think that the justification for 
taking silviculture out, according to Mr. Cooke earlier, was 
that that's where most of the comments came from--that, as you 
put it, they're the squeaky wheel, and that by addressing that, 
that you could move forward with the rest of it. So do you 
believe that the agriculture in Arkansas, the poultry industry 
in Arkansas, the confined beef operations, the row crop 
operations, do you think that they have equal stake holder 
positions in this proposal?
    Mr. Hillman. Yes, sir, I think we do.
    Senator Hutchinson. And so do you think there might have 
been any--as Senator Crapo suggested earlier--divide the 
opposition by dropping one part of the proposal and saying, 
``We're going to come back to that later?''
    Mr. Hillman. As we were driving over here tonight, we were 
visiting in the automobile about it, and that was exactly my 
statement then. I said, ``This looks to me like an effort to 
divide and conquer.''
    Senator Hutchinson. So the Farm Bureau and those who may 
not directly be involved in silviculture stood by the 
silviculture--the timber industry--during this fight. Do you 
believe that they're going to continue to oppose this proposal 
even though they now have been, at least for the time being, 
left out?
    Mr. Hillman. Well, we've had two people here tonight to 
testify that, yes, they're going to.
    Senator Hutchinson. Mr. Hart, what do you think?
    [Applause.]
    Mr. Hart. I certainly believe that to be the case, 
particularly since we really don't know what the proposal is at 
this point.
    Senator Hutchinson. Mr. Hillman, what is the Farm Bureau 
doing to ensure that Arkansas quality needs are adequately 
addressed, absent the EPA's influence and----
    Mr. Hillman. I didn't hear you.
    Senator Hutchinson. What positively has the Arkansas Farm 
Bureau done to try to improve water quality in the State of 
Arkansas?
    Mr. Hillman. One thing we've done is work with NRCS, a 
long-standing partnership, in getting the information out to 
our farmers about what they need to do. All you have to do is 
show us what we need to do, why we need to do it, and give us 
the resources to do it, and we're going to do it, and we do 
that in a number of ways. We have different commodity 
committees within the organization. We have different interests 
within the organization, and all of us want to have better 
farms than what we started out with, all of us want to improve 
our productivity, improve the profitability or at least 
maintain a profitability at this point. The Farm Bureau 
constantly works on conservation. We have a Youth Conservation 
Workshop that we sponsor every summer to try to get high school 
kids interested in conservation, what they can do to make 
things better.
    Senator Hutchinson. So Arkansas Farm Bureau's just not 
trying to out-protect polluters and prevent them from----
    Mr. Hillman. No, Sir.
    Senator Hutchinson. I ask that facetiously. I know better. 
My time is up, and I want the Chairman to have sufficient time 
to ask questions. It has been clear tonight to me that the 
EPA's proposal is a reaction--they've been very honest about 
it--it's a reaction to lawsuits Mr. Bates has been involved 
in--the lawsuits against the State of Arkansas. There have been 
over 30 lawsuits filed against EPA over the last few years. I 
think that is a poor way of making public policy. I know this: 
That Senator Crapo's legislation would provide additional funds 
for the States to implement voluntary Best Management 
Practices, which everybody at this table says are working. If 
you give them more money to do the job, I think it will work 
even better. In his proposal, the National Academy of Science 
should study this issue for 18 months, and when we move 
forward, that we should do so on the basis of good science--
that he's not doing this to head off lawsuits. He's doing it 
because he believes that that is a good public policy and the 
way you ought to formulate good public policy. And so once 
again, I appreciate your testimony, appreciate Senator Crapo's 
leadership.
    Senator Crapo. Thank you, Senator Hutchinson. Mr. Hillman, 
I'll start with you, because I want to just followup a little 
bit on the line of questioning that Senator Hutchinson was 
pursuing. I want to read to you--in fact, Mr. Hart, I'll 
probably want to get both your and Mr. Hillman's response to 
this from the agriculture and from the forestry perspective. 
And either of the other two of you who would like to comment on 
this, please feel free to. The letter from Mr. Fox with regard 
to what he proposes to do with regard to the timber industry is 
a page and a half of small print, but I'm going to read the 
last substantive paragraph--or portions of it, which is really 
the operative wording. What Mr. Fox says is that:

    In response to the interest in additional discussion of forest 
water quality issues, EPA will not include forestry provisions in the 
TMDL regulations to be finalized this summer. Instead, I expect that 
the Agency will repropose provisions of the August proposal related to 
forestry later this fall along the lines described in the USDA-EPA 
Joint Statement,

and it does say,

    We intend to engage the stakeholders extensively in reviewing the 
forestry provisions prior to the reproposal this fall. Based on the 
comments received on this reproposed rule, the Agency will decide 
sometime next year how best to proceed to address this important issue.

    Now, as I read that, it says,

    Sometime next year, they're going to do the timber or forestry part 
of the proposal that is currently before us.

    I think it's pretty clear that the reason they are backing 
away from including the forestry provisions now is because that 
has been where the most uproar has taken place with regard to 
the proposed rule, although certainly, from my perspective, 
it's not 80 or 90 percent, it's probably 50 percent or 
whatever, but there's been a significant amount of comment from 
other perspectives. The question I have is: Is that adequate--
in fact, I'll start with you, Mr. Hart--is that adequate, just 
looking at it from the perspective of the forestry industry?
    Mr. Hart. I guess the answer is ``We really don't know.''
    I guess the answer is that ``We really don't know at this 
point,'' because, as has been pointed out, the letter is pretty 
vague on what they seek to repropose and how they seek to 
redevelop the rules, but it certainly seems like it's just a 
pause to kind of let the fervor die down and then hope that 
next time they go around, people are worn out and they're not 
willing to fight it.
    [Applause.]
    Senator Crapo. Are you familiar with the USDA-EPA Joint 
Statement of the new approach to this rule that they would have 
liked to impose?
    Mr. Hart. Yes.
    Senator Crapo. If we were to assume that that is what the 
EPA reproposes, which is what is stated in this letter, and if 
the EPA then proceeds to repropose that USDA-EPA proposal, with 
which we are familiar, and it seems to me that EPA has ample 
time, given the speed with which it has approached this rule, 
to start with, to get everything into place by the end of the 
year, and then January of next year they could simply adopt 
this next segment of it. They wouldn't even have to wait for a 
new Administration, particularly if they didn't like the 
outcomes of the election. And given that, if you were to assume 
that what was put back on the table was the USDA-EPA proposal 
and that there were going to then be adopted early next year, 
would that be a victory for the forestry industry?
    Mr. Hart. Absolutely not. Basically, that's just a 
recrafting of the same proposal and stated in a different way, 
and I'll give you a couple of examples of why. That May 1 Joint 
Statement proposes a 5-year moratorium on the enforcement of 
the forestry aspects, but it still includes--it still changes 
forestry from a nonpoint source to a point source, and we know 
that litigation--citizen lawsuits--can do away with the 5-year 
moratorium immediately, basically. And also, that Joint 
Statement has not provided us with any criteria on how they are 
going to evaluate State programs, which is one of the 
components of that statement, and for all we know, the criteria 
that they're going to use to evaluate are broader, particularly 
when we've been told by EPA that California, Oregon and 
Washington are models that we should look to when we go to 
evaluate State programs.
    Senator Crapo. Thank you. And Mr. Hillman, the question I 
was going to pose to you was if the same deal were offered to 
agriculture, that ``We won't do it now, but we will 
repromulgate it and start the proposal over with and go forward 
and implement it next year,'' would that be an acceptable 
solution?
    Mr. Hillman. No. And the reasons for that is right now, 
agriculture, silviculture, all these things are under section 
319. Anytime they want to change that and put it under 303, 
we're going to be opposed to it, because that's against the 
law.
    Senator Crapo. Understood. Now, Mr. Bates, in your 
testimony, you talked about an understanding of how the TMDL 
program ought to work and how our approach to clean water in 
the country ought to work, which frankly I have no disagreement 
with in principle. In fact, I think most people in America 
would think that it was a pretty sensible approach. What you 
discussed was identifying which streams are polluted, 
identifying what the cause of the pollution is, and then 
developing a framework within which we can approach addressing 
the pollution. To that extent, I think that the S. 2417 that 
we've introduced makes some major steps forward in providing 
resources to achieve exactly that objective. The concerns that 
have been raised with regard to the proposed rule, however, as 
I see it, are that cloaked in those kinds of discussions of 
what we ought to do to approach the clean water--making sure we 
have clean water in this country, was a very heavily command-
and-
control-oriented, centrally located power structure with 
control over an area of the clean water actions in this country 
that had never been transferred to Washington then being 
transferred to Washington. Now, I don't want to get engaged 
with you in a debate over whether that is what happened or 
isn't what happened in the rules. My question to you is: Is it 
necessary, to achieve the objectives you talked about in your 
testimony, to have the EPA, in addition to addressing those 
issues of identification and focusing of resources, to assert 
control over the decisionmaking?
    Mr. Bates. I want to make sure I understand your question 
right. Do you mean--are you talking about increasing the area 
in which they have permitting authority?
    Senator Crapo. Yes. Let's assume, just for the sake of this 
question----
    Mr. Bates. OK.
    Senator Crapo [continuing]. That the concerns around the 
country that have been raised about the EPA becoming a Federal 
land use manager and the EPA being able to permit forestry 
activities and so forth are valid. I don't want to engage in 
that debate with you, but let's assume they're valid. Is that 
necessary to achieve the objectives that you talked about that 
need to be achieved under the TMDL proposals and under the 
Clean Water Act?
    Mr. Bates. I want to make two points, I guess. No. 1, as 
long as the way the Clean Water Act's set up and the TMDL 
program and throughout the program, as the State has primary 
enforcement authority, and EPA only steps in if the State has 
dropped the ball. And the State--to my knowledge, EPA has never 
taken away that delegation of authority, so even though Sierra 
Club and other folks of this panel that have disagreement at 
times over how well different States are doing, it's never 
gotten so bad that a State's authority was yanked, and I don't 
think we're there yet. Let's look at the Arkansas settlement. 
The way that the Clean Water Act works, we didn't sue the 
State, we actually sued EPA. The law is that EPA has the final 
authority. They're the ones that really have to do it, but that 
did not necessarily mean my clients wanted the EPA to take 
over. We have a lot of faith in the people over at the Arkansas 
Water Quality Department--or the Water Quality Department and 
ADEQ. So we met with not only EPA, but we had long discussions 
with the State. Toward the end of the lawsuit, the Arkansas 
Forestry Association and the American Forest and Paper 
Associations intervened. We did not oppose their intervention. 
They asked to be part of the settlement negotiations. It was a 
year into the lawsuit. We'd pretty much come to the end of 
them, but we said, ``Well, you're a little late. We're about to 
present this to the Court as a consent decree, but we'll sit 
down with you and talk about it first.'' And we sat down with 
them, they made some proposals, we accepted some of them, some 
we didn't like, we went ahead and presented it to the Court and 
they didn't oppose it in the end.
    Senator Crapo. And the State remained in----
    Mr. Bates. And the State----
    Senator Crapo [continuing]. And the decisionmaking was 
still delegated to the State?
    Mr. Bates. Right. The way the consent decree is set up, the 
State is still the primary actor. Everyone's hope is the State 
will be the primary actor, but if the State doesn't do what is 
required under the consent decree, the EPA is required to step 
in.
    Senator Crapo. And that final hammer is the one that I'm 
asking about. Is it necessary for us to create a system of 
cleaning up the waters of this Nation to say that the EPA has 
the ability, if it decides the States aren't doing the job well 
enough, to step in and take control over nonpoint source 
pollution activities?
    Mr. Bates. Well, I think the reason it came about is back 
in 1972, when the Clean Water Act was passed, there was a 
concern with the race to the bottom. Because of economic 
pressures, States might compete to have more lax regulations, 
so the idea was ``We'll have a national framework so that we 
can have some consistency across the country, but we'll still 
delegate to the States within that national framework to have 
on-the-ground enforcement power.'' And I think it's a good 
system, because it gives you the national backstop to stop 
the--to alleviate the concerns about the race to the bottom. 
But it allows the State, which is closer to the ground, to have 
the primary enforcement authority. I think it does work pretty 
well.
    Senator Crapo. Thank you. Mr. Blubaugh.
    Mr. Blubaugh. Yes.
    Senator Crapo. We've heard a lot today, beginning with Mr. 
Cooke in the first panel, about the threat that litigation 
poses to the whole system of clean water in the United States. 
Now, is that threat primarily litigation relating to point 
sources?
    Mr. Blubaugh. In this particular case, I was talking about 
the TMDL litigation, which it basically has resulted as an 
extremely artificial timeframe when developing TMDLs, often on 
a statewide basis.
    Senator Crapo. Right. And those are point sources?
    Mr. Blubaugh. Both.
    Senator Crapo. Both?
    Mr. Blubaugh. Both, yes.
    Senator Crapo. So you're talking about just the development 
of the TMDL?
    Mr. Blubaugh. TMDL, which can include both point and 
nonpoint. I mean, depending on the specific TMDL, but it can--
--
    Senator Crapo. So the time deadlines or the time pressures 
that Mr. Cooke was talking about are time pressures that he 
expects courts to impose on the timeframe within which States 
have to create the TMDLs?
    Mr. Blubaugh. Create the TMDLs, right. And then the 
resulting control strategies after those, you know. The TMDL 
breaks up the pie, and then you have to decide how you're going 
to control each of those----
    Senator Crapo. And so if we were going to try to solve 
that, in the legislation we are talking about here, we've 
addressed the number of the issues that we need to address--
getting resources to the States, getting resources to 
identifying and addressing TMDLs. If getting the resources 
there isn't sufficient, wouldn't the solution be to simply have 
a congressional moratorium supported by the EPA that would 
create a timeframe which was workable within which the States 
could operate with the increased resources that we're talking 
about providing to them instead of rushing to impose a new rule 
such as this one?
    Mr. Blubaugh. Exactly right. And that was the basis of the 
statement where I said, you know, the 18-month moratorium is a 
start, and in the statement we said we felt that that should be 
expanded.
    Senator Crapo. Expanded to include point source issues as 
well as nonpoint source issues?
    Mr. Blubaugh. Well, yes, timeframes. Because the TMDLs, 
depending on the specific situation, may be both point source 
and nonpoint source. I mean, it just depends on the specific 
watershed and what the----
    Senator Crapo. Thank you. I see that my time's up. You want 
to have the last word----
    Senator Hutchinson. No, Mr. Chairman.
    Senator Crapo [continuing]. Senator Hutchinson? All right. 
We thank this panel for coming today, and we appreciate your 
attention to these issues.
    [Applause.]
    Senator Crapo. Now we've come to what was going to be the 
last half-hour. It's really 15 minutes, but we'll extend it for 
the full half-hour as we said.
    Senator Hutchinson. If necessary.
    Senator Crapo. If necessary. Let me ask, just by a show of 
hands, how many here are here who would like to take an 
opportunity right now to say something at a mike if you had 
time? I'm counting about 1, help me count here, 2, 3--I'd say 
10 or 15.
    Senator Hutchinson. Fifteen, yes.
    Senator Crapo. OK, I'll tell you what we'll do. Would those 
of you who raised your hands please come up and just form a 
line here at the mike, and we'll ask you to keep your comments 
to 2 minutes. And I will rap the gavel to remind you. Two 
minutes is going to come a lot faster than you think it does. 
In fact, can we set these lights for 2 minutes?
    Senator Hutchinson. And ``15'' is expanding.
    Senator Crapo. And ``15'' is now expanding. So we may have 
to--let's see how big the line gets, and then we'll see whether 
you get a minute or 2 minutes. OK, who's standing high enough 
so they can count the number in the line? OK, we got 15 in the 
line. Time's up. Is there anybody heading for the line that 
isn't there yet? OK. Everyone, please keep it to 2 minutes. 
We'll have the--is that yellow light 2 minutes?
    The yellow light will tell you you have 1 minute, and I'll 
just kind of rap it if you go too much over. And please state 
your name for the record. Yes, sir, go ahead.
    Mr. Mobley. I note the yellow light's on already--oh, there 
it is.
    Senator Crapo. There we go.
    Mr. Mobley. My name is Zack Mobley. I'm an architect from 
Batesville and general partner of the Mobley Lumber Company. 
Welcome to Arkansas, Senator Crapo.
    Senator Crapo. Thank you.
    Mr. Mobley. I'm a graduate of the University of Idaho 
Architecture School, and I have to say that it was a great 
experience and a great education.
    Senator Crapo. We had some timber there, too.
    Mr. Mobley. Absolutely. My concern at this point is--and I 
hate to say this, but I can't support your bill for this 
reason: It sounds a lot like a lot of government responses to 
problems in that we spend a lot of money, put in a lot more 
studies and hire a bunch more bureaucrats and give more money 
to the States to go ahead and do what the Federal Government 
would do if they were--you know, if they were able to. I'll be 
perfectly honest with you, no matter what the National Academy 
of Sciences says, I do not want to be tormented by Federal 
bureaucrats or by State bureaucrats who are being financed by 
Federal bureaucrats. We have our own property, and it doesn't 
belong to the State, it doesn't belong to the Federal 
Government, and we'd like to have the opportunity to do like 
free men would and manage it ourselves.
    [Applause.]
    My experience with dealing with the Federal Government when 
I was in Idaho and had an opportunity to see what they were 
doing is that they're extremely incompetent at this kind of 
thing, and the individual managers are much--owners are much 
better at it, because they have a real stake in it, and to be 
perfectly honest with you, I think this is a moral matter and 
that we either protect our freedom or we give it up. And 
foresters in California and in Maryland right now have to beg 
the States for the right to cut their own timber, and this is 
what we object to--or at least I object to it.
    [Applause.]
    Senator Crapo. Some very valid points. Mr. Mobley. Thank 
you very much.
    Senator Crapo. Yes, sir.
    Mr. Redman. Thank you, Senator, for being here. I hope your 
efforts come to fruit. I'm Bill Redman. I'm a general partner 
in the Mobley Lumber Company. I think it's clear to everyone 
that we're being held hostage by unelected bureaucracy that's 
out of control and has no respect for our elected 
representatives and is gradually trying to take our freedoms 
away. And there's a whole lot of unrest in this country right 
now, and it's not just about that, but everybody's going to 
have to stand up and let these people know that they can't sit 
up here and not answer questions that are being asked and think 
they can get away with it. And I just want to thank you-all for 
being here, and everybody ought to stand up and tell it like it 
is, now.
    [Applause.]
    Senator Crapo. Thank you. You did it in 60 seconds, too. 
All right. Yes, sir.
    Mr. Snyder. Excuse me. My name is John Snyder. I'm 
president of Arkansas Face, a small woodworking company in 
Benton.
    Senator Crapo. Speak a little more right into the 
microphone.
    Mr. Snyder. OK, excuse me. My name is John Snyder, and I'm 
president of Arkansas Face, a small woodworking company in 
Benton, Arkansas. I'm here speaking as an individual, not as a 
representative of our company or any of the trade organizations 
I'm affiliated with. But in hearing everybody on the various 
boards speaking, it kind of came to me that there's some things 
that are taking place here that make me very uncomfortable. 
There are agendas that everybody's bringing to the table versus 
some common-sense approaches. The air is cleaner than it's been 
in 20 years, the water's cleaner than it's been in 20 years, 
Best Management Practices are working. These are our 
initiatives that weren't forced down our throats by a bunch of 
bureaucrats from Washington, DC. These are things the industry 
individuals have done on their own because they needed to be 
done. I appreciate very much Mr. Mathis' comments. He indicated 
that it was his belief we ought to pull back, eliminate the 
open-ended language in this TMDL regulation and use common-
sense approaches such as Best Management Practices. I also 
appreciate David Hillman's comments. He mentioned conservation. 
I'm in the woodworking industry, but I also consider myself to 
be a conservationist. I consider myself to be an 
environmentalist. I am not a preservationist, because I don't 
think it's practical, in light of growing world populations and 
demands on farm products and wood products, to go back a 
thousand years. I do think that it's incumbent on us to 
conserve our natural resources for future generations and to 
leave things better than the way we found them, and I don't 
think that this is going to be done by passing legislation that 
gives anybody with a bad attitude and a 36-cent stamp the 
ability to put an injunction in place that prevents decent, 
law-abiding citizens from exercising their rights on their 
land.
    [Applause.]
    Mr. Snyder. We've talked about funding this evening. Just 
recently, the Government passed a $45 billion bill over 15 
years in the Carroll Land Act that took taxes from offshore 
drilling to allow the Government, who already owns one-third of 
the United States, to buy more acreage. Now, on this acreage, 
when they build an outhouse, the average cost is over $200,000. 
The forestry that's being practiced--not by the foresters, the 
government foresters--this has been forced upon them by policy 
that's outside of--I'm also a forester by vocation. These 
things have been forced upon them from administrative levels, 
and good forestry is no longer able to be practiced. The 
forests are overmature, they're subject to insect infestation, 
wildfires and disease. The United States is a net importer of 
all wood products. We consume more wood products per capita 
than we do all plastics, all Portland cement, all metals. It's 
incumbent on us to provide for future generations--not to 
export our problems overseas to countries who don't have the 
resources to deal with these issues. So those are my comments. 
Thank you.
    Senator Crapo. Thank you very much.
    [Applause.]
    Senator Crapo. Yes, sir.
    Mr. Blackall. Mr. Chairman, Senator Hutchinson, my name is 
Bruce Blackall. I am the executive director of the Arkansas 
Home Builders Association. We've heard a lot tonight from--and 
rightly so--from agricultural interests, silviculture and so 
forth, and we would not want you to forget, as I think you 
don't, that my industry--the residential construction 
industry--has a great stake in what's going to go on in these 
proposed TMDL regulations. At stake, as far as we're concerned, 
is the cost of housing, affordability of housing, and our 
ability to cope with a heavy-handed set of regulations that's 
going to make our jobs much more difficult. We strongly support 
your bill S. 2417, will do anything we can to support you in 
this, and we appreciate your efforts. I have a prepared remark 
on behalf of our organization, and we'd request that they be 
entered into the record of this hearing.
    Senator Crapo. Without objection, they will be. In fact, 
let me take a brief moment here before the next speaker and 
indicate that anyone here who would like to can send written 
testimony to the committee, and how will we get the address to 
them? We will have the address posted. I was about ready to 
have you send it to Senator Hutchinson, but that may not be 
fair to him. We will get the address posted here right 
afterwards for anyone who would like to have that address, and 
you can send it to us. Thank you.
    [Applause.]
    Mr. Dudak. I'm Mr. R.F. Dudak from Heber Springs, AR. I 
don't represent any organization. I am a tree farmer, and my 
family makes our sole living from the tree farm, and these 
proposed regulations, even though the EPA is supposed to 
postpone them, I think these are going to be more detrimental 
to the small landowner than they will be to the big 
corporations, because once you have to go after all these 
permits, the small landowner is going to spend most of his 
money trying to get the permits, and then you're going to end 
up in lawsuits if some environmental group decides they don't 
want you to cut your timber, and then you'll be paying all your 
money to the lawyers rather than trying to take care of your 
land. And I support your bill. I think it's a good approach, 
and I appreciate you coming to Arkansas to hear our input. 
Thank you very much.
    Senator Crapo. Thank you.
    [Applause.]
    Mr. Rogers. My name's Ray Rogers, and I'm kind of in 
trouble here tonight, Senator. I have a 2,500-head hog 
operation, and I'm also a logger, and I've been in the timber 
business for 26 years. So I'm kind of regulated to death, to 
start with, on the hog side of it, and I have no confidence in 
more regulations coming out of Washington to benefit anything 
that I do.
    [Applause.]
    Mr. Rogers. I also chair the Arkansas Farm Bureau Forestry 
Committee, and I belong to that organization, because I feel 
like I'm at my wit's end here, and I need as much help as I can 
to combat any kind of regulation that comes down from 
Washington. I have three small logging operations, I employ 
about 20 men, and they all take care and feed their family from 
these logging operations, and I've been in the business for 26 
years. And I'd just like to say, I think we have a private 
property issue here, and I think anybody that has 40 acres of 
timber or 10 acres of timber and they want to cut it and send 
their kid to college or something, that they should be left 
alone and be able to do that.
    [Applause.]
    Mr. Rogers. And we need your help to slow down this 
regulation that's coming down that I have no control of. I'm 
not a lawyer, I've never sued anybody, and, you know, I don't 
know how to go about even doing that, to start with, but, you 
know, we need your help--the small landowners and the small 
businesses, and I thank you for your time.
    Senator Crapo. Thank you.
    [Applause.]
    Mr. Cleveland. Good evening, and I want to thank the 
Senators for their support of this, because I'm glad to see 
somebody trying to inject some rationality into the process. My 
name is Bill Cleveland. I've come all the way from Shreveport, 
LA, to be here with y'all tonight, and I appreciate you-all 
traveling the distance you have. I'm an employee of the 
International Paper Company, and we've long been supporting 
data in this process. And I'm glad to see tonight that EPA 
region 6 is truly recognizing the resource constraints that the 
TMDL program is going to be imposing on them. As they've 
mentioned, there's been three consent decrees within their 
region in Arkansas, Louisiana and New Mexico. In Arkansas, it 
doesn't appear to be any substantial change in the TMDL 
program, but in my home State of Louisiana, the list of 
impaired water bayous has increased from 195 water bayous to 
345, and 1,700 TMDLs over 7 years needed to be developed. I'm 
glad to see that the EPA is making some moves to appeal that, 
because the State of Louisiana has estimated that that's going 
to be, at a minimum, $50,000 per TMDL to develop, and much more 
likely an order of magnitude more than that. Quick math, $85 
million just for the State of Louisiana, up to close to a 
billion dollars just to do the paper work before you have one 
iota of environmental improvement, and that's kind of a scary 
proposition to all the other States within region 6. I don't 
understand why EPA's opposing the Crapo bill. This whole TMDL 
proposal is the largest water quality improvement proposal that 
EPA has come out within 25 years. What's another 18 months to 
look at this and inject some real science and not just knee-
jerk reaction against lawsuits into the program. I think that 
we need to look at the fact that Louisiana has recognized 
publicly that while their metals data is flawed, and in the 
current TMDL proposed rule, if there's a water impairment in 
one State, they can look at a neighboring State that might 
potentially be contributing to that. So this rule could very 
much have a potential on Arkansas. We need to be looking at 
that, because it could really hurt some people in, say, the 
Ouachita River Watershed or the Red River Watershed. Also, if 
we engage more people in this, we'll engage more stake holders 
who would be a part of the solution and not engage in more 
lawsuits, and I think by discussing this, it's going to help 
stave off some feared litigation. And I just want to remind Mr. 
Hathaway--he probably remembers this pretty vividly--that when 
they announce the EPA settlement--and he said in the letter 
that's posted on the Internet site in region 6 that:

    With the timeframes expected in Louisiana, they're going to have to 
use default models, and any TMDL that's developed in Louisiana is going 
to be subject to further litigation.

    So why don't we study water quality, let's figure out where 
the problems are, and let's put the resources there and rather 
than putting the resources at fighting lawsuits. Thank you.
    Senator Crapo. Thank you.
    [Applause.]
    Mr. Alivack. My name's Roger Alivack. I'm a practicing 
forester. I've been practicing forestry in North Arkansas for 
20 years now--almost 21 years. Ever since I started, I've seen 
BMPs from day one being implemented and being improved year 
after year after year, and it doesn't come cheap. It costs 
money to do that. And we're willing to do that to improve the 
water quality in this State. And I think we've done a good job, 
and I think we're continuously improving our forestry practices 
as years go by. But don't take my word for it. I have here in 
my hands the Ozark-Ouachita-Highlands Assessment, the Aquatics 
Condition Book, and on page 198, they state--this is the Forest 
Service, they spent a lot of money on this, by the way, coming 
up with this, and I was fortunate to get a copy from it and I 
appreciate them sending it to me. And I did read this, but in 
1990--they state right here on page 198:

    In a 1994 study of regional BMPs for the South, investigators 
conclude that, as a whole, forestry represents a relatively minor 
source of nonpoint source pollution compared to other sources.

    Why are we trying to regulate something that is a small--a 
minor source of nonpoint pollution? I don't understand that. 
There are other things that we can do rather than spend our 
money on TMDL police to come around the woods and come back 
behind us, who have been trained. They list in this same book 
``Other aquatic restoration programs, bring back the natives, 
Challenge 21,'' the list goes on--some that I've been involved 
with--FIB and SIB, but yet the funding for those kind of goes 
downhill, and yet they want to raise the funding for 
regulations on something that's a minor source of nonpoint 
pollution. And that's all I've got to say.
    Senator Crapo. Thank you.
    [Applause.]
    Unidentified audience member. Good evening, Mr. Chairman, 
Senator Hutchinson. I want to--on behalf of my company, Georgia 
Pacific, I want to thank you for the interest that both of you 
have shown in this issue as it's been promulgated and your 
committee coming here and showing the attention to these 
individuals--these citizens of this State, and this issue is to 
be commended. Thank you very much. I'm going to try to 
articulate just a couple of small points that I think that were 
illustrated greatly here tonight and enhanced. Confusion is 
plentiful here. There's a great deal of confusion, and that 
creates apprehension, and I think you're able to hear that in 
the remarks of every person here--with that apprehension comes 
a great gap of distrust, and if all the stake holders can be 
brought together, such as your committee's trying to do, and 
through this S. 2417 legislation, then maybe these citizens can 
feel some of the protection that the Congress is obligated to 
provide for them to keep bureaucracies from running amok and 
running over each and every one of them.
    And I think that's what they're trying to articulate here, 
and hopefully that message is coming through. I want to say 
that you are obligated to protect the citizens of the State of 
Arkansas, Idaho and the rest of the country, and your conduct 
here tonight and your presence here tonight shows that you take 
that obligation seriously, and you're resolute in your 
activities to try to protect each and every citizen here in 
this State and in the country. And as Ronald Reagan said, ``If 
not who--if not you, then who; if not when, then now.'' So now 
is your time, and thank you for your time here tonight. Senator 
Crapo. Thank you.
    [Applause.]
    Mr. Francis. Senator Crapo, Senator Hutchinson, thanks for 
being here. I'd like to commend all of your constituents who 
voted for you and elected you, and hope they keep on doing what 
they're doing. My name is Jim Francis, I live in Little Rock. 
Since 1961 I've been a small-time, part-time, weekend tree 
farmer. We have three small tracts of timber in Clark and 
Nevada Counties totaling less than 600 acres. I'm a PNIFLO--P-
N-I-F-L-O--Private, Non-
Industrial, Forest Landowner. This sector owns 57 percent of 
the commercial forest land in Arkansas. Mr. Hillman's got us 
beat. He's got 280,000 members, and there are only about 
150,000 of us. I think the engine that runs this--we didn't 
talk about who was suing the EPA, but I go back to 1980 when 
the anti-forestry advocates attempted to achieve legislated 
regulation of forest practices in Arkansas. There were a number 
of public hearings. I testified at a couple. I toured 
Weyerhaeuser's lands in Oklahoma with the Blue Ribbon Panel 
which Governor Clinton appointed. Same old people running the 
whole thing. Fortunately, reason prevailed and there was no 
such legislation. Back at that time, the Sierra Club was 
telling us about the Ouachita National Forest. Now, they were 
against clearcutting, you know. They were in favor of good 
forest management and harvesting, but finally the truth came 
out and they finally admitted from headquarters that they're 
opposed to any type of forest management--any harvesting on any 
Federal lands. Couple of years ago, the anti-forestry advocates 
attempted a back-door approach again to getting some kind of 
regulation through the legislature. They wanted to require that 
the State Forester provide certain educational material to 
every landowner before he or she could sell their timber. State 
Forester Shannon made it very clear that that was preposterous. 
That was as preposterous as is the idea of calling silviculture 
a point source of pollution. How preposterous! So hang in 
there. You're on the right track and we're behind you, and may 
I leave this up here somewhere where you can get it?
    Senator Crapo. You may.
    [Applause.]
    Mr. Wesson. Senator Crapo, Senator Hutchinson, I want to 
thank both of you-all for holding this informational hearing 
here tonight here in Hot Springs, AR. My name is Don Wesson. 
I'm the vice chairman of the Pulp Paper Workers' Resource 
Council. I'm also the vice president of the Paper Allied 
Industrial Chemical Energy Workers' Union in McGehee, AR. Our 
group, the PPRC, represents over a million and a half members 
throughout the Nation, and I would like to reassure the 
farmers--the brethren of the farmers--that we are behind you. 
Just because they pulled it out of--silviculture out, we'll be 
there for you.
    [Applause.]
    Mr. Wesson. Senator Crapo, I'd like to remind you of 
something. With you being from Idaho, you're aware of the 
hundreds of thousands of jobs that's been lost in the Pacific 
Northwest due to regulations. Well, I heard Larry Nance while 
ago speak that if, indeed, the TMDL goes on as proposed, it 
would shut logging down here in Arkansas. I'm a third-
generation paper worker. It's been in my family for 75 years. 
I'm not ready to quit. I'm not ready to give up. I'm too young 
to retire, and I'm not going to quit. Also heard the region 6 
Mr. Cooke say that should the TMDL come get regulated, that his 
region would not change one bit. Well, Mr. Cooke, if you 
believe that, you're a bigger fool than I am, because if you 
will not change one bit, you'll be fired, because they want 
you--they want to manage in Washington, DC, what you're doing 
in Dallas. Thank you-all. We will have a demonstration on the 
steps of the Nation's capitol in July. I will be in touch with 
both you-all and ask for your assistance. Thank you.
    Senator Crapo. We look forward to seeing you there.
    [Applause.]
    Senator Crapo. Yes, sir.
    Mr. Rowe. My name is Lynn Rowe. I'm a local architect and 
tree farmer. I appreciate the evening that we're having here, 
this Town Hall meeting, and one of the gentlemen earlier said 
that he thought the quality of life began with the environment, 
and I would like to propose that our quality of life is defined 
by our freedom.
    [Applause.]
    Mr. Rowe. These agencies that you gentlemen are privileged 
to create in Washington have a way of growing on their own, 
such as a cancer on the land, and I'd hope that you would 
always be aware of this, and we look to you to control these 
matters as well as create them. Thank you very much.
    Senator Crapo. Thank you, sir.
    [Applause.]
    Mr. Nix. Senator, my name's Joe Nix. I'm from Arkadelphia. 
I'm a chemist. Here in the watershed of the Ouachita River here 
in 1804, Thomas Jefferson dispatched a party up the Ouachita 
River. They poled the boat up--William Dunbar and a chemist, 
strangely enough in 1804, named George Hunter. If you read 
their journals, when it rained the river got muddy.
    [Applause.]
    Senator Crapo. That sounds like some common sense, Mr. Nix. 
Well, that tells us a good bit about the river. I haven't been 
at it quite that long, but I have been studying rivers and 
lakes in Arkansas most of my professional life. I have done 
loading studies on many streams, I know what's involved. It is 
not easy. You do not go out and take one sample and draw the 
conclusion that a stream is impaired. It takes a very systemic 
set of samples under a variety of conditions in order to, as 
you put it earlier, Senator, make sure that the impact from 
some land-disturbing activity is not lost in the background of 
what nature is already doing. We must be careful. I urge you to 
please, please do not let anyone talk you out of taking your 
provision dealing with the National Academy of Science out of 
your legislation. I believe I heard Mr. Cooke say that he 
opposed that particular provision, and I do not think that is 
appropriate in any sense of the word. I would refer you to a 
report of 1991, entitled ``Credible Science, Credible 
Decisions, the State of Science at EPA.'' It's a very thin 
document. We must study these streams. We must understand them 
before we regulate--not after. Thank you.
    Senator Crapo. Thank you.
    [Applause.]
    Unidentified audience speaker. I appreciate the opportunity 
to express myself here for a minute or two, and we have this 
you might say open forum here, and I'm a land surveyor in 
Glenwood, AR. Many of my clients own small tracts of timber, 
and many are farmers, so I have an interest in them. But I also 
have a fundamental interest in the moral values of our State 
and of our Nation, and over a period of time, I have grown 
suspicious of Federal agencies in general. The reason that the 
Constitution was written was to limit the powers of the Federal 
Government, and the States should have, I believe, control of 
these matters rather than delegating it to the Federal 
Government.
    The question arises if the EPA becomes the last authority, 
to whom is the EPA accountable? And when we see there is 
oftentimes a political agenda when it comes to applying the 
rules, that there isn't always a uniform application of rules, 
but these things can become a political agenda, and so I'm just 
kind of suspicious. And when we talk about environmental 
protection, I believe that there is a moral at issue here 
that's involved of integrity and that the real source of 
pollution should be more directed, if there is going to be some 
investigation, toward the gross immorality that has deluged our 
country through the media and poses a far greater threat to our 
children and to the future generations here with a total 
breakdown of our traditional moral values that are rooted in 
the Bible and Christianity than there is--and if the EPA is 
going to become the Lone Ranger riding in on Silver, you know, 
with Tonto helping and deliver us from the pollution that's 
involved, I think they're down the wrong track if they want to 
really deal with pollution and restoring integrity and morality 
in our Nation and in our State, and I think the State is better 
qualified. I trust those in the State much better than I do in 
Federal agencies, and that's what I have to say. Thank you.
    Senator Crapo. Thank you, sir.
    [Applause.]
    Mr. Farley. Hello. My name is Allen Farley, and I'm a 
landowner assistance forester with Green Bay Packaging in 
Morrilton, AR. I first came to Arkansas professionally in 
January 1997. When I asked my future boss at that time what my 
job description would be, he said, ``You're to help private 
landowners. You're to assist them with every forestry operation 
that they need to have done except for logging.'' So therefore, 
I don't have any specific company financial stake in the 
decisions, I tell these people. And I work with--in our 
program, we have approximately 700 landowners representing over 
100,000 acres. About 50,000 acres of that is in pine 
plantation. And of all those landowners, I've never met one of 
them that said, ``I would like to have my stream muddied when 
you leave, please. I'd like to pay for that as well.'' I've 
never heard anybody say anything like that. Anytime we say that 
we always follow Best Management Practices, maintain streamside 
management zones, and our company does comply with all SFI 
standards. The people are thrilled to death to have somebody 
like that on their property helping them out. Another point I'd 
like to make is I work with all the State government agencies--
the Arkansas Forestry Commission and the NRCS to help these 
private landowners maybe get some government funding for some 
of the forestry projects that they're doing. Just in my short 3 
years here, that funding has dwindled almost to nothing. 
Counties that got maybe $50,000 to help people, now it's $1,500 
to do the forestry work, and here we're trying to spend 
millions if not billions of dollars to fix a problem that 
doesn't exist, you know.
    There's a lot of analogies I was thinking of as I was 
standing in line, but, of course, when you get up to the 
microphone, you forget a lot of what you want to say. So I 
guess the best one is, you know, if I don't have a flat on my 
truck, I don't go to the garage and pay to have the flat fixed. 
I wait until it gets flat and then I have it fixed. So 
hopefully with that last bit of remote common sense, you know, 
we'll maybe make a better decision here. Thank you.
    Senator Crapo. Thank you, sir.
    [Applause.]
    Senator Crapo. One more? We'll let one more go, and then 
we'll wrap it up.
    Mr. Rutherford. My name's Claude Rutherford, and I'm in the 
poultry business. I work for a poultry company. I have a 
poultry farm. I also have a beef cattle farm. And I wanted to 
talk, because all the forestry people have talked, and I 
appreciate very much what they've said. I agree with what 
they're saying, but I want you to know that animal agriculture 
is very much concerned. I served on Governor Clinton's Animal 
Waste Task Force back in the early 1990's, and we set up some 
Best Management Practices. We encouraged our producers to get 
farm management plans. The State Legislature gave funding. 
We've got almost 40 technicians in the State writing Best 
Management Plans for our farmers, and the farmers are following 
them. And examples, I think we heard earlier about the 
improvement of water quality at Moores Creek. I live just down 
the creek from Moores Creek. I live on the Muddy Fork. The 
water quality is the State line of Arkansas and Oklahoma, as 
far as phosphorus was one of the hot buttons now, from the mid-
1980's to the middle 1990's after we implemented those Best 
Management Practices was reduced. The phosphorus level went 
down by like almost 20 percent, and I will have that data to 
you in a report. Those issues today, our growers are going 
through educational training--not just here in Arkansas, but in 
Oklahoma and Missouri, the areas that I work, the Extension 
people, the NRCS people and others are involved with the 
university on putting together programs on Best Management 
Practices, how to handle litter, and they have gone through 
training. We have got another set of training that they're 
going to go through this year. It's a voluntary program, and 
yet we're getting 70 and 80 percent of the growers to go 
through that training, to go to meetings. They don't get paid. 
They go to the meetings and they set there and they go back and 
apply those. I think voluntary approach is working. It works in 
forestry, it works in animal agriculture. If somebody teaches 
me that it's a good practice, it's good for the environment 
around me, I'll do it. If somebody comes and says, ``You do it 
or else,'' I'm going to try every way in the world to get 
around it. Thank you.
    Senator Crapo. We hear you. Thank you.
    [Applause.]
    Senator Crapo. Well, ladies and gentlemen, I'm going to 
give Senator Hutchinson and myself both 2 minutes as well to 
wrap it up, but before I do that, I'm going to go first and you 
can have the last word of the whole hearing, Senator 
Hutchinson. But before I do that, let me indicate that for 
those of you who would like to submit written testimony, you 
may send it to--OK, you can send it to the Committee on 
Environment & Public Works at 505 Hart Senate Office Building--
H-a-r-t--505 Hart Senate Office Building, Washington, DC. 
20510. That's the Committee on Environment & Public Works, 505 
Hart Senate Office Building, Washington, DC. 20510. And you may 
be interested to know that--oh, first of all, I'd like to ask 
you to have your testimony postmarked by June 26, if you 
possibly can. That should give you ample time to prepare it. 
And you also might be interested in knowing that the written 
testimony of the panels, of the witnesses who were on the 
panels today, will be available on the committee's web page. 
That web page can be viewed at www.--and I don't even know what 
that sign is----
    Audience member. It's a tilde.
    Senator Crapo. Tilde?
    Audience member. Yes. It's the Spanish----
    Senator Crapo. It's the little thing that goes like this, 
OK? It's a tilde. www.senate.gov/~epw/--g-o-v. So that is 
www.senate.gov/~epw/. And now let me just take my 2 minutes and 
wrap up here. And I wanted to take my time to tell you that I 
am really glad that we had this last half-hour with the open 
mike, because it gave me a feel--one additional feel for the 
people of Arkansas, and I can tell you that ever since I got 
here, I've just had the feeling that the folks here in Arkansas 
are just like the folks in Idaho, and it was absolutely 
ironclad confirmed to me when we had the open mike session, 
because I'm telling you we could have been in Idaho and had the 
same kind of good, common-sense testimony coming right from the 
people without having to have all of the wisdom flow from 
Washington. To the first speaker who said that you didn't like 
the bill, he was strumming at my heartstrings there a little 
bit, because there are things that I'd like to do differently 
as well, but this may be the best step that we can take right 
now in this effort, and I do appreciate the support that has 
been expressed here tonight for our efforts to try to steer 
this issue in another direction, and I want to reassure that 
gentleman as well as all of you that we are going to be trying 
to address the real issues that were so well brought out here. 
As was said in so many different ways and so powerfully by you, 
the issue still is freedom, and the 10th amendment to the 
Constitution said that the powers that were not specifically 
given to the Federal Government were reserved to the States and 
to the people, respectively.
    And one way or another, ladies and gentlemen, one of you 
said, ``Don't give up.'' Believe me, I know that I won't, and 
Tim and I were elected to the Congress at the same time, as I 
said, and we've stood side by side in battle after battle for 
what's been going on 8 years now. And I know that we will keep 
fighting, and we will start winning more and more with the 
support of people like you around the country who stand up. So 
thank you for coming tonight. Your attendance here I hope was 
beneficial to you, but I can assure you that it was beneficial 
to us and to America. Thank you very much.
    [Applause.]
    Senator Crapo. Senator Hutchinson.
    Senator Hutchinson. Well, I'll just take my 2 minutes to 
thank you for coming. You've been very generous with your time, 
and we're glad to have your wonderful wife, Susie, here and----
    Senator Crapo. I should have introduced her.
    Senator Hutchinson [continuing]. We just want you to be 
back here and see Arkansas again. I know we had a number of 
State Legislators here, but I saw Senator Jodie Mahony out 
here, and we're just glad to have you, Jodie, and it's the 
first time I've ever seen you sit through a whole meeting and 
not say a word. But I don't want to tempt fate. That's OK. But 
we're glad you're here. And, Mike, I just want you to know, I'm 
very proud of my constituents, that I felt a lot of pride as 
they lined up there, and frankly I thought, as you did, that 
what we heard in the public comment section in that 30 minutes 
was far more meaningful than--as good as the Panels were, they 
were a lot better. And it was clear to me as we heard them 
speak that they love their land, and they love their freedom 
even more.
    [Applause.]
    Senator Hutchinson. One of my friends is in the Senate from 
New Hampshire, and I always like the New Hampshire State motto: 
``Live Free or Die.'' And I think that would be just as good 
for the State of Idaho or the State of Arkansas. Mike, thanks 
for being here. We really appreciate the hearing this evening, 
and I know for both of us, this will be very valuable. Thank 
you.
    Senator Crapo. And thank you very much.
    [Applause.]
    Senator Crapo. And this hearing is now adjourned.
    [Whereupon, at 9:05 p.m., the committee was adjourned, to 
reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
    Statement of Gregg A. Cooke, Regional Administrator, Region VI, 
                    Environmental Protection Agency
                              introduction
    Good afternoon Mr. Chairman. I am Gregg Cooke, Regional 
Administrator for Region VI of the Environmental Protection Agency 
(EPA). I appreciate the opportunity to testify before this committee on 
the work we are doing--in cooperation with other Federal agencies, 
States, and local communities--to identify polluted waters around the 
country and restore their health.
    In previous testimony to your committee Chuck Fox, EPA's Assistant 
Administrator for Water, described in some detail the key elements of 
the Clean Water Act program for restoring polluted waters--generally 
known as the ``Total Maximum Daily Load'' or TMDL program. His 
testimony described the over 20,000 waterbodies identified by States as 
polluted in 1998. It also described our effort, begun almost 3 years 
ago, to work with a diverse Federal Advisory Committee to review the 
TMDL program and identify needed improvements in existing regulations. 
And, the testimony described the changes to the current TMDL 
regulations that EPA proposed in August of last year.
    Rather than review these topics again today, I would like to focus 
on work we have done since February with a range of interested parties 
to discuss the important issues raised in the proposed regulations.
    As a result of these discussions, I am confident that we can 
develop a final regulation that addresses many of the suggestions we 
have heard while still providing for a strong, common-sense program--
led by the States and local communities--to identify and restore the 
Nation's polluted waters.
    I will also review some recent developments related to the TMDL 
program. For example, a Federal court in California recently confirmed 
the EPA's long-standing view that the Clean Water Act calls for 
polluted runoff from nonpoint sources to be accounted for in the 
identification of polluted waters and in the development of TMDLs. 
Finally, Mr. Chairman, I will describe the Administration's strong 
opposition to the legislation (S. 2417) you recently introduced with 
Senator Crapo calling for a delay of several years in finalizing 
revisions to the TMDL program regulations.

             CONSULTATION WITH PARTIES INTERESTED IN TMDLS

    Over the past several months, EPA has worked closely with many 
groups and organizations interested in the TMDL program and in the 
proposed revisions to the current TMDL regulations. We have also made a 
special effort to review the many public comments we received on the 
proposed regulations.
Consultation with States
    As indicated in earlier EPA testimony, the Clean Water Act provides 
that States have the lead in the identifying polluted waters and 
developing TMDLs.
    It is critical that States stay in this leadership role and that 
they are partners in developing and implementing the program for 
restoring polluted waters described in our final regulations.
    In developing the proposed revisions to the TMDL regulations, we 
worked closely with State officials, including a group set up by the 
Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA) and the Environmental Council of the States 
(ECOS). In addition, four senior State officials were members of the 
Federal Advisory Committee on the TMDL program.
Consultation with the U.S. Department of Agriculture
    For the past several years, EPA and the United States Department of 
Agriculture (USDA) have worked in close cooperation to design and 
implement programs to protect water quality.
    EPA and USDA worked together in developing the Clean Water Action 
Plan several years ago, developed the EPA/USDA Animal Feeding Operation 
Strategy issued last year, and worked with other agencies to draft the 
Unified Federal Policy for Management of Water Quality on a Watershed 
Basis proposed earlier this year.
    When the proposed TMDL rule was published last August, concerns 
were raised in comments by the USDA. In response to these concerns, 
Chuck Fox met with Under Secretary for Natural Resources and the 
Environment, James Lyons, and established a joint EPA/USDA workgroup to 
review concerns of USDA with the TMDL proposal.
    The USDA/EPA workgroup has been meeting on a regular basis over the 
past 3 months and these meetings have involved several dozen staff from 
different parts of both agencies. These intensive discussions have 
helped both agencies think through how our programs can best be 
coordinated.
    EPA and USDA recently released a Joint Statement describing areas 
of agreement on the TMDL rule. Mr. Chairman, I ask that a copy of the 
Joint Statement be included in the record.
    Some of the key elements of this Joint Statement describe changes 
EPA expects to include in the final TMDL rule on topics of interest to 
the USDA. For example, the Joint Statement outlines how EPA and USDA 
propose to address the problem of restoring polluted waters that are 
impaired as a result of forestry operations. The USDA/EPA forestry 
proposal is discussed in more detail later in my testimony.
    In addition, the Joint Statement addresses the treatment of diffuse 
runoff in our August TMDL proposal. EPA remains committed to voluntary 
and financial incentive approaches to reduce runoff from diffuse 
sources of pollution where there is reasonable assurance that these 
controls will be implemented. The proposed rule would not require Clean 
Water Act permits for runoff from these sources.
    The President's fiscal year 2001 Budget backs up this commitment to 
voluntary and incentive-based programs with proposals that State grants 
for polluted runoff programs be increased from $200 to $250 million and 
that funding for conservation assistance programs at the U.S. 
Department of Agriculture be increased by $1.3 billion. The benefits 
that result from these and other assistance programs will be given due 
credit in the TMDL process.
    Since the majority of polluted waters are polluted in whole or in 
part by runoff from diffuse sources, a management framework that does 
not address them cannot succeed in meeting our clean water goals. As I 
discuss in more detail later in this testimony, this view was recently 
endorsed by a Federal court in California.
Review of Comments on the Proposed Regulations
    I want to assure the committee that EPA is fully, and carefully, 
reviewing the public comments on the proposed regulations.
    The Agency received over 34,000 comments on the proposed TMDL 
regulation.
    The comments fall into three general groups:
     We received some 30,546 postcards addressing control of 
water pollution from forestry operations. Many of these comments are 
virtually identical.
     We received 2,747 comments from diverse individuals and 
organizations expressing a view on one or two elements of the proposal.
     We received 781 comments from groups or individuals 
expressing comments on multiple parts of the proposal.
    We view each and every comment as important. In anticipation of 
extensive comment, EPA began working to organize and evaluate comments 
received even before the close of the comment period. Since the comment 
period closed, we have reassigned staff as needed to review and 
summarize comments.
    This is an important effort begun over 3 years ago with the 
convening of a Federal Advisory Committee. EPA has made every effort to 
assure a full and careful review of public comments. If anything, the 
high level of interest in the regulation has given us an extra measure 
of determination to assure that the final TMDL rule is based on a 
careful consideration of the record.

             EXPECTED CHANGES TO PROPOSED TMDL REGULATIONS

    I want to outline our current thoughts on how to change the 
proposed revisions to the TMDL regulations and proceed with the 
important work of restoring America's polluted waters.
Delivering the Promise of the 1972 Clean Water Act
    The final rule will provide a common-sense, cost-effective 
framework for making decisions on how to restore polluted waters. EPA 
expects that the final rule will:
     Tell the Full Story.--Provide for a comprehensive listing 
of all the Nation's polluted waters;
     Meet Clean Water Goals.--Identify pollution reduction 
needed to meet the clean water goals established by States in water 
quality standards;
     Encourage Cost-Effective Clean-Up.--Assure that all 
sources of pollution to a waterbody are considered in the development 
of plans to restore the waterbody;
     Rely on Local Communities.--Foster local level, community 
involvement in making decisions about how best to meet clean water 
goals;
     Foster On-the-Ground Action.--Call for an implementation 
plan that identifies specific pollution controls for the waterbody that 
will attain clean water goals;
     Commit to Environmental Results.--Require a ``reasonable 
assurance'' that the needed pollution reductions will be implemented; 
and
     Assure a Strong Program Nationwide.--EPA will establish 
lists of polluted waters and TMDLs where a State fails to do so.
Enhancing State Flexibility in Managing Polluted Waters
    States will have the lead to identify and clean up polluted waters 
through the TMDL program. The final regulation will expand the 
flexibility that States have to tailor programs to the specific needs 
and conditions that they face. EPA expects that the final rule will:
     Give States More Time.--Allow States 4 years to develop 
lists of polluted waters, rather than 2 years as under current 
regulations;
     Give States More Time.--Allow States to develop TMDLs over 
a period of up to 15 years, rather the 8-13 year timeframe of the 
current program;
     Tailor to Local Conditions.--Tailor implementation plan 
requirements and add flexibility to account for different types of 
sources causing the water quality problem; and
     Endorse Voluntary Programs.--Give full credit to voluntary 
or incentive-based programs for reducing polluted runoff through 
diverse control measures, including best management practices (BMPs).
Streamlining the Regulatory Framework
    In response to comments from many interested parties, the final 
rule will be streamlined and focused on what is needed for effective 
TMDL programs. EPA expects that the final rule will:
     Drop Threatened Waters.--Drop the requirement that 
polluted water lists include ``threatened'' waters expected to become 
polluted in the future;
     Allow More Flexibility in Setting Priorities.--Drop the 
proposed requirement that States give top priority to addressing 
polluted waters that are a source of drinking water or that support 
endangered species;
     Drop Petition Process.--Drop the proposal to provide a 
public petition process for review of lists of impaired waters or TMDL 
program implementation;
     Drop Requirements for Offsets of New Pollution.--Drop 
proposals to require offsets before new pollution can be discharged to 
polluted waters prior to the development of a TMDL; and
     Phase-In Implementation.--New requirements for polluted 
waters lists become effective in 2002 and new requirements for TMDLs 
will be phased in over an 18-month period.
USDA/EPA Forestry Approach
    In finding a common view of the best approach to reducing forestry 
impacts on water quality, EPA and USDA agreed that a number of States 
are doing an outstanding job of managing forest operations and 
preventing water pollution. We want to recognize and rely on these 
strong State programs to both prevent water pollution and to fix those 
pollution problems that do occur.
    Not all States, however, currently have strong forest management 
programs. Many of these States are working hard to upgrade programs 
over the next several years. These efforts need to be encouraged and 
supported.
    Finally, some State forestry programs may not be adequate to 
prevent water pollution problems for the foreseeable future. In 
situations where States choose not to develop approvable programs 
within 5 years, EPA and USDA recognize the need to have a ``safety 
net'' for water quality. The safety net that we envision is to empower 
State environmental agencies to issue Clean Water Act permits for 
discharges of stormwater from forestry operations, in very limited 
circumstances.
    Let me be clear that, under our approach, no Clean Water Act 
permits would be issued for at least 5 years from the date of the final 
TMDL rule. And, no permits would be issued in States that now have, or 
that develop, adequate forest water quality programs. The final rule 
will describe basic criteria of adequate programs, including 
appropriate best management practices identified in consultation with 
USDA.
    Where a State has not developed a strong forest water quality 
program after 5 years, forestry operations might be asked to have a 
permit, but only if:
     The forestry operation resulted in a ``discharge'' from a 
point source (diffuse runoff from a silviculture operation will not be 
subject to a permit under any circumstances);
     The operation contributes to a violation of a State water 
quality standard or is a significant contributor of pollutants to 
waters; and
     The State Clean Water Act permit authority determined that 
a permit, as opposed to a voluntary or incentive-based program, was 
needed to assure that pollution controls would be implemented.
    EPA may also designate forestry operations as needing a permit, but 
our ability to do so is even more limited than that of the State. In 
addition to meeting the conditions mentioned above, the EPA would need 
to be establishing a TMDL where a State did not do so.
    EPA agrees that, where a State finds that a permit is needed, best 
management practices, rather than numeric effluent limits, are 
appropriate as permit conditions.
    In addition, because States have the discretion to issue permits, 
forest operators that have not been told by the permit authority that 
they need a permit will not be subject to government or citizen 
enforcement for failure to have a permit.

            IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

    I want to briefly review some recent, important developments 
related to the TMDL program.
Reducing Workload and Assuring Adequate Resources
    State officials have expressed concern over the workload and costs 
of the TMDL program. EPA is making every effort to respond to this 
concern. Last month, EPA issued a regulation eliminating the 
requirement that States submit lists of polluted waters this year; new 
lists will not be due until 2002. The decision to eliminate the 2000 
listing process has saved States and others hours of work and has 
allowed us all to concentrate on the important job of developing TMDLs 
for the over 20,000 waterbodies already identified as polluted.
    States are also concerned about the costs of administering the TMDL 
program. The annual appropriation available to States to administer and 
directly implement TMDLs and the clean water program has steadily 
increased from $131 million in 1993 to a proposed $410 million in the 
Administration's proposed 2001 budget.
    The President's fiscal year 2001 Budget increases State grant 
funding for TMDLs by $45 million in fiscal year 2001 alone. When States 
match this new funding, about $70 million in new funding will be 
available for implementing the TMDL program.
    In addition, EPA has provided States with the discretion to use up 
to 20 percent of funding under section 319 to develop TMDLs and for 
related work. The President's request for 319 funding in fiscal year 
2001 is $250 million and thus provides up to $50 million in additional 
TMDL funding.
    And, EPA expects that the final rule will support more cost-
effective development of TMDLs by specifically encouraging States to 
develop TMDLs for groups of polluted waterbodies on a watershed scale.
    EPA has worked with States to develop detailed assessments of the 
costs of key elements of the clean water program. Based on this 
analysis, and in consultation with the Office of Management and Budget, 
EPA projects that the funding proposed in the President's budget would 
be sufficient for States to administer the TMDL program in 2001 under 
the final TMDL regulations expected to be promulgated this summer.
Garcia River Decision
    A Federal court in California, reviewing a challenge to a TMDL 
developed for the Garcia River, concluded last month that the Clean 
Water Act authorizes EPA to establish TMDLs for waters ``polluted only 
by logging and agricultural runoff and/or other nonpoint sources rather 
than by any municipal sewer and/or industrial point sources.''
    The court noted that the Supreme Court has consistently referred to 
the Clean Water Act as establishing a ``comprehensive and all-
compassing'' program of water pollution regulation. The court found 
that the logic of section 303(d) required that listing and TMDLs were 
required for all impaired waters, and concluded that excluding nonpoint 
source impaired waters would have left a ``chasm'' in the statute. And, 
the judge found that Congress' passage of section 319 in 1987 was 
consistent with the view that section 303(d) covered nonpoint sources 
of pollution because TMDLs were needed for the planning required under 
Section 319.
    This decision confirms EPA's long-standing interpretation of the 
Act. It also makes clear that the requirement to list waters polluted 
by diffuse or nonpoint sources, and develop TMDLs for these waters, is 
based on the Clean Water Act rather than the existing or proposed TMDL 
regulation.
GAO Report on Water Quality Monitoring
    Also in March, the General Accounting Office released a report 
critical of data used by States and EPA to make water quality 
decisions.
    EPA has responded to the report in detail, agreeing with some 
conclusions and disagreeing with others.
    EPA agrees with the GAO conclusion that some States lack the data 
that they need to fully assess the water pollution problems in their 
State. In many States, the lack of an extensive, and expensive, 
monitoring network prevents the State from evaluating all waters on a 
regular basis. Given limited resources, however, knowledgeable State 
managers focus monitoring resources on the most likely problem areas. 
The GAO report recognizes this approach and reports ``State officials 
we interviewed said they feel confident that they have identified most 
of their serious water quality problems.''
    The GAO report suggests that the polluted waters identified from 
this monitoring may not be all of the polluted waters in the State. It 
does not indicate that the polluted waters that are identified as 
polluted are improperly identified as polluted. In other words, the 
TMDL program may not be focused on enough waters, but it is not focused 
on the wrong waters. In addition, if a waterbody is listed as polluted 
by mistake, it can be removed from the list.
    Some observers have incorrectly concluded that the report found 
that States do not have the data that they need to develop TMDLs. There 
are several problems with this conclusion.
    First, GAO generally found that States do have the data they need 
to develop TMDLs for point sources.
    Second, while most States now lack detailed data to develop a TMDL 
for waters polluted by nonpoint sources, the development of these site-
specific data has not been a priority of State monitoring programs. EPA 
and States recognize and expect that, once the process of developing a 
TMDL is begun, sometimes, several years later, States will need to 
supplement the initial screening data used to identify the problem with 
more detailed assessments needed to develop a TMDL. The lack of these 
data today is not a reason to delay a TMDL.
    Third, GAO concludes that the lack of detailed nonpoint source 
related data makes it ``difficult to directly measure pollutant 
contributions from individual nonpoint sources and, therefore, assign 
specific loadings to sources in order to develop TMDLs.'' This would be 
a concern if EPA's existing or proposed TMDL regulations required that 
States have data to assign specific loadings to individual sources, but 
they do not. Rather, EPA's proposed regulation specifically provided 
that allocations to nonpoint sources may include ``gross allotments'' 
to ``categories or subcategories of sources'' where more detailed 
allocations are not possible.
Atlas of America's Polluted Waters
    States submitted lists of polluted waters in 1998. Over 20,000 
waterbodies across the country are identified as not meeting water 
quality standards. These waterbodies include over 300,000 river and 
shore miles and 5 million lake acres. The overwhelming majority of 
Americans--218 million--live within 10 miles of a polluted waterbody.
    A key feature of the 1998 lists of polluted waters is that, for the 
first time, all States provided computer-based ``geo-referencing'' data 
that allow consistent mapping of these polluted waters. In order to 
better illustrate the extent and seriousness of water pollution 
problems around the country, EPA prepared, in April of this year, an 
atlas of State maps that identify the polluted waters in each State. 
The maps are color coded to indicate the type of pollutant causing the 
pollution problem. And, bar charts show the types of pollutants 
impairing stream/river/coastal miles and lake/estuary/wetland acres.
    Mr. Chairman, I ask that a copy of the Atlas of America's Polluted 
Waters be included in the hearing record.
Economic Analysis
    Several Members of Congress have suggested that EPA did not conduct 
an adequate assessment of the cost of the TMDL regulation. As you know, 
Mr. Chairman, cost assessments of proposed regulations are strictly 
governed by statute and by Executive Order.
    In compliance with these requirements, EPA described the 
incremental costs of the proposed regulation. We did this work 
carefully and fully, in compliance with applicable guidelines. EPA is 
working with States and others to define the overall costs of 
administering the TMDL program, including both the base program costs 
and the incremental costs of the new regulations. EPA is committed to 
providing an estimate of these costs prior to promulgation of the final 
TMDL regulations.
    Many commenters on the proposed revisions to the TMDL regulations 
indicated an interest in EPA's estimate of the overall costs of 
implementing the TMDL program and restoring the Nation's polluted 
waters.
    It is important to note that several provisions of the Clean Water 
Act call for attainment of water quality standards adopted by States. 
Notably section 301(b)(1)(C) of the Act requires that all discharge 
permits include limits as necessary to meet water quality standards. 
The TMDL process does not drive the commitment to meet water quality 
standards. Rather, it provides a comprehensive framework for 
identifying problem areas and allocating pollution reductions necessary 
to fix problem among a wider range of pollution sources (i.e. not just 
point sources).
    EPA recognizes that the TMDL process imposes some administrative 
costs for States, communities and pollution sources. We believe, 
however, that these administrative costs could be largely offset by the 
significant savings to be achieved over the next decade as a result of 
the TMDL process. By bringing all sources of pollution in a watershed 
together, the local community and the State can work together to 
evaluate various approaches to achieving needed pollution reductions. 
For example, the cost to remove a pound of a given pollutant may be 
high for some sources and low for others.
    The TMDL process lays out these considerations and lets the local 
community decide how to meet its clean water goals. EPA expects many 
communities to opt for cost-effective approaches, many of which rely on 
low cost controls over nonpoint sources.
    Under the final revisions to the TMDL rules to be published this 
summer, opportunities for shifting pollution control responsibility 
from high cost point source controls to lower cost controls over 
nonpoint sources will be greatly enhanced. Under the new rules, States 
and EPA will be able to defend point source permits that alone will not 
result in attainment of water quality standards because the TMDL must 
provide a ``reasonable assurance'' of implementation of other needed 
pollution reductions.
    Under the TMDL rules in effect today, ``reasonable assurance'' is 
not a necessary element of a TMDL and cost effective sharing of 
pollution reductions is much less likely. As I have testified, 
``reasonable assurance'' of implementation can be established based on 
voluntary and incentive-based programs.
    EPA is developing rough estimates of the costs of attaining clean 
water goals using the TMDL model and not using the TMDL model (i.e. 
relying on point source controls only to meet water quality standards) 
and will make this estimate available in conjunction with promulgation 
of the TMDL regulation.
                         opposition to s. 2417
    Mr. Chairman, the legislation you introduced with Senator Crapo, S. 
2417, includes some important provisions expanding authorizations for 
State clean water grants. But the Administration must strongly oppose 
the bill because it would delay final TMDL regulations by at least 3 
years, and perhaps much longer.
    The bill would expand authorizations for several key State grant 
programs, including the clean water program management grants under 
section 106 of the Clean Water Act and the nonpoint pollution control 
grants under section 319 of the Act. The Administration believe that 
adequate State grant funding for clean water programs is critical to 
effective operation of the Nation's clean water program. We have 
proposed an increase of $150 million over the past 2 years in funding 
for State nonpoint control programs and an increase of $45 million in 
fiscal year 2001 for State water program grants. However, the 
Congressional Budget Resolution limits domestic discretionary spending 
such that it will be very difficult to meet the Administrations's 
proposed increases. Given the Congressional Budget Resolution, the 
funding levels proposed in the bill are unrealistic. One of the 
unintended consequences could be to divert funding from other valuable 
water quality efforts. The Administration stands ready to work with 
Congress to achieve our ambitious goals of substantially increased 
funding for important water quality work.
    The section 106 grant authorization would increase to $250 million 
with $50 million of this amount reserved for implementation of TMDLs. 
The President's fiscal year 2001 budget provides an increase of $45 
million in the section 106 grant that is reserved for TMDL development 
with an appropriate State match. This $45 million increase would bring 
the total amount of the section 106 grant to $160.5 million in fiscal 
year 2001.
    The bill would authorize $500 million for the section 319 grant 
program, which is double the President's fiscal year 2001 request. Some 
$200 million of this amount would be reserved for grants to implement 
nonpoint pollution control projects. Further, the bill would 
significantly lower the current non-Federal matching requirement. The 
Administration recommends maintaining the current non-Federal match, 
which is a more appropriate rate of 60 percent Federal funds with the 
remaining project costs provided by non-Federal funds. For any given 
level of available Federal funding, the bill's proposal of a 90 percent 
Federal matching requirement would result in fewer projects funded, and 
fewer areas and people being served.
    Provisions of S. 2147 call for a study of the scientific basis for 
the TMDL program. While there are technical issues associated with the 
development of TMDLs, many of the essential scientific bases for 
developing TMDLs and restoring polluted waters are already available. 
There is no need for a review of this science by the National Academy 
of Sciences. In addition, other objectives of the study, such as 
assessments of total costs of meeting water quality standards, are 
questions that the National Academy of Sciences is not best suited to 
answer.
    Section 5 of the bill provides for the funding of five watershed 
management pilot projects. States and EPA already have extensive 
experience in the development and implementation of watershed 
management projects at several geographic scales. For example, the 
National Estuary Program has invested tens of millions of dollars in 
watershed management projects on over 28 estuaries around the country. 
Numerous other watershed management projects have been completed or are 
underway. It would be a mistake to divert $2 million to these five 
projects when this funding is badly needed to support broader State 
efforts to develop TMDLs.
    Finally, section 6 of S. 2147 would prevent the finalization of 
TMDL regulations until the completion of the study by the National 
Academy of Sciences. The Administration is strongly opposed to this 
provision of the bill.
    Enactment of this proposal could result in the effective shut-down 
of the TMDL program in many States as they and other parties defer work 
on TMDLs until the comprehensive studies mandated by Congress are 
completed. Sadly, Congress would be telling thousands of communities 
across the country that are eager to get to work restoring the over 
20,000 polluted waters to stand down--to pack up their clean water 
plans and put them into the deep-freeze for the foreseeable future 
while a panel of scientists meets here in Washington, behind closed 
doors, for almost 2 years, to write a report.
    Many States have strong public confidence in their TMDL programs 
and expect to work cooperatively with the public in listing polluted 
waters and developing TMDLs. State efforts to meet commitments to the 
public to run effective TMDL programs would be hampered because many 
affected pollution sources could cite the Congressionally mandated 
national study as a reason to delay any action on TMDLs before release 
of the study and subsequent revision of the rules. Public confidence in 
the TMDL process could be seriously eroded.
    Citizens may step-up efforts to seek court orders to complete lists 
of polluted waters and TMDLs. Without final regulations to guide EPA 
and State efforts to implement the TMDL program, courts could issue 
detailed judicial guidance for the TMDL program.
    I hope, Mr. Chairman, that I can convince you and other Members of 
Congress that we do not need to postpone any longer these important 
improvements to the TMDL program. We have a solid legislative 
foundation in the Clean Water Act. We have a good TMDL program that 
will be even better with the revisions to the program regulations that 
we will finalize this summer. Most importantly, people all over the 
country want to get to work restoring polluted rivers, lakes, and 
coastal waters, and they want to start now.

                               CONCLUSION

    The 1972 Clean Water Act set the ambitious--some thought 
impossible--national goal of ``fishable and swimmable'' waters for all 
Americans. At the turn of the new millennium, we are closer than ever 
to that goal. Today, we are able to list, and put on a map, each of the 
20,000 polluted waters in the country. And, we have a process in place 
to define the specific steps to restore the health of these polluted 
waters and to meet our clean water goals within the foreseeable future.
    It is critical that we, as a Nation, re-dedicate ourselves to 
attaining the Clean Water Act goals that have inspired us for the past 
25 years. The final revisions to the TMDL regulations will draw on the 
core authorities of the Clean Water Act, and refine and strengthen the 
existing program for identifying and restoring polluted waters.
    Mr. Chairman, I consistently hear from critics of the TMDL program 
that it is more of the old, top-down, command-and-control, one-size-
fits-all approach to environmental protection. In fact, the TMDL 
program offers a vision of a dramatically new approach to clean water 
programs.
    This new approach focuses attention on pollution sources in proven 
problem areas, rather than all sources. It is managed by the States 
rather than EPA. It is designed to attain the water quality goals that 
the States set, and to use measures that are tailored to fit each 
specific waterbody, rather than imposing a nationally applicable 
requirement. And, it identifies needed pollution reductions based on 
input from the grassroots, waterbody level, rather than with a single, 
national, regulatory answer. In sum, we think we are on the right track 
to restoring the Nation's polluted waters.
    The final revisions to the existing TMDL regulations will support 
and improve the existing TMDL program and they will be responsive to 
many of the comments we have heard from interested parties.
    Thank you, for this opportunity to testify on EPA's efforts, in 
cooperation with States and other Federal agencies such as the 
Department of Agriculture, to restore the Nation's polluted waters. I 
will be happy to answer any questions.
                                 ______
                                 
     STATEMENT OF RANDALL MATHIS, DIRECTOR, ARKANSAS DEPARTMENT OF 
                         ENVIRONMENTAL QUALITY

    Chairman Smith, Senator Baucus, honorable members of the committee 
on Environment and Public Works it is indeed an honor to appear before 
you and to testify on the content of Senate Bill S. 2417.
    I know it would have been much more convenient to have held all 
committee meetings on this important piece of legislation in 
Washington, DC. I am most appreciative of you for bringing this 
committee hearing to the Natural State in the heartland of America, 
reaching out to receive testimony from many who would not otherwise 
have the opportunity to be heard by the full committee. This is 
government at its best. I believe your being here expresses your keen 
interest in the quality of life of all Americans to the benefit of 
present and future generations. I believe you and I share the view that 
the quality of life begins with the quality of the environment, and the 
quality of the environment depends on the commitment we individually 
and collectively have to that end. Economic growth is important and 
very necessary if we are to continue to be a great Nation and provide 
meaningful job opportunities for generations to come. We can have a 
good, clean environment and continued strong economic growth only 
through common-sense laws and regulations. Mark Twain once said, 
``Common-sense is not too common.'' I believe that to be too often true 
in the development of Federal environmental regulations. I commend 
Senator Michael Crapo and Senator Bob Smith, committee Chair, for an 
excellently crafted common-sense bill, S. 2417. I believe passage of S. 
2417 to be critical to the continued protection and enhancement of the 
environment and to the economic well-being of our people. This bill 
must surely be one that can be embraced by Republicans, Democrats, 
independents, and the public. You, as no other elected body, recognize 
the urgency in addressing the critical issue of nonpoint source 
pollutant contributions to the waters of our nation. We must also 
recognize that agriculture and silviculture are not the only sources 
contributing to the sedimentation of our streams. Construction of 
highways, streets, roads, bridges, mining, and economic and housing 
development projects are major contributors of siltation. However, 
these sources can be controlled by stormwater permit requirements. 
Stormwater is covered in Federal laws that allow the issuance of 
National Pollutant Discharge Elimination System (NPDES) permits for 
these activities.
    Section 3 of S. 2417. This section is critical to the success of 
the TMDL program. This is true in both the 106 and 319 programs. The 90 
percent grant to eligible landowners is appropriate. We, the States, 
currently have to match the small amount of 106 Federal money currently 
dedicated to the TMDL program with 40 percent State money. The States 
will be doing 90 percent or more of the TMDL work. Therefore, I 
recommend that the match for both 106 and 319 Federal dollars require 
10 percent cash match. State programs have matured. A recent study 
shows that States now have received authority to run 70 percent of the 
delegable environmental programs; States provide 75 percent to 80 
percent of all enforcement of environmental laws and regulations and 
provide greater than 94 percent of all the data in the EPA data base. 
Even though the States are faced with rapidly growing environmental 
workloads and responsibility, the EPA continues to unnecessarily 
increase the number of staff in the Washington office. In light of 
EPA's isolating its salary and administrative costs in its 
appropriation behind a ``Chinese wall,'' I am concerned about how much 
of the appropriation envisioned in Section 3 of the bill will be 
available to States.
    Section 4 of S. 2417. I am pleased to see the requirement that the 
Administrator of the Environmental Protection Agency contract with the 
National Academy of Sciences (NAS) to carry out the provisions of 
Section 4. Limiting NAS to 18 months to complete its work and report to 
Congress may be optimistic. EPA has had 28 years to accomplish this and 
is still working on the guidelines for conducting TMDLs. The NAS 
involvement will instill a greater public trust in the process.
    When the bill first came to my attention, I assumed it would be 
prescriptive and for that reason would not be able to support it. 
However, after poring over it this past weekend, I support it. It has 
dawned on me that the current EPA Administrator has given 
interpretations to Federal law that was never intended by the Congress. 
Many of those interpretations wrongly favor the EPA regulations. In 
view of EPA's dismal record of losing, in court, significantly over 50 
percent of the challenges to such interpretation, I must concur with 
the prescriptiveness encompassed in S. 2417.
    I strongly urge bipartisan support of S. 2417.
                                 ______
                                 

                          ADDITIONAL COMMENTS

    Mr. Chuck Fox, Assistant Administrator for Water, EPA, Washington, 
called me in early April. He asked what course I would recommend he 
take to address concerns raised about the proposed regulations that 
addressed TMDL and NPDES for agriculture and silviculture. My advice to 
Mr. Fox was that EPA should pull back the regulation and change the 
language to compost with what he and Administrator Carol Browner were 
saying about the regulation. Most of the concerns were addressed in an 
EPA send USDA meeting convened in April, which resulted in the issuance 
of a joint statement May 1, 2000, by the EPA and USDA. The changes they 
proposed, in my view, make the regulation supportable. However, I have 
a major concern with the joint report. It appears that EPA accepts part 
of the ruling by a U.S. District Court Judge on its authority 
concerning the TMDL initiative while ignoring the second part.
    The court ruled that the EPA has the authority to include non-point 
pollution sources in a TMDL process. EPA agrees, as do I. However, the 
U.S. District Judge ruled that although TMDLs are part of the Clean 
Water Act, the TMDLs should only be advisory to the States. EPA tends 
to interpret its guidelines as a fact of law, even though many are 
adopted without having public input. District Judge Alsup also ruled 
that nonpoint sources of pollution should not be subject to mandatory 
regulations under the Clean Water Act. Apparently, the EPA disagrees. 
The joint statement continues the discussion of requiring permits under 
certain circumstances. In my opinion, permits could only be required if 
the EPA changes the definition of which activities require a point 
source NPDES) permit. The EPA has lost a significant majority of its 
legal challenges arising over its interpretation, rather its 
misinterpretation, of the environmental laws enacted by the U.S. 
Congress. It seems to me Hat He EPA would have to declare sheet runoff 
from rainfall to be a point source of pollution. Example, a section of 
land being farmed or having a silviculture activity carried out would 
have rainfall runoff for a distance of one mile. The EPA must not be 
allowed to circumvent the laws and intent of the U.S. Congress by 
defining such nonpoint source activities to be point source discharges.
    I have every confidence in Mr. Chuck Fox's integrity and fully 
believe he will keep his commitments to honor the agreement EPA made 
with the USDA if he is allowed to do so.
                                 ______
                                 
     STATEMENT OF LARRY D. NANCE, DEPUTY STATE FORESTER, ARKANSAS 
                          FORESTRY COMMISSION

    Senator Crapo, the Arkansas Forestry Commission welcomes you to 
Arkansas. The forestry community thanks you for sponsoring the Water 
Pollution Program Enhancements Act of 2000. The State Forester of 
Arkansas supports the bill. We are pleased that Arkansas Senator 
Hutchison is a cosponsor and for the support of Congressman Dickey.
    Everyone wants to protect water quality especially loggers, 
foresters, and the forest landowners. Although EPA appears determined 
to install a regulatory approach, the Arkansas Forestry Commission-
Board of Commissioners, the Governor, and the State Forester support 
voluntary implementation of Best Management Practices to protect forest 
water quality.
    We applaud the idea for EPA to contract with the National Academy 
of Sciences to study the development of TMDLs and review other methods 
of achieving water quality. Arkansas' State Forester John Shannon has 
served on the National Academy forestry committee. The organization 
does outstanding work. We hope that you will suggest to EPA and the 
National Academy that a southern State Forester serves as a member of 
the study committee.
    Lastly, the AFC position is (1) that silviculture maintain the 
Nonpoint Source category, (2) that forestry practices not require a 
NPDES permit (National Pollution Discharge Elimination System), (3) 
best management practice remain voluntary and (4) the AFC welcomes an 
EPA review of our BMP implementation monitoring and training. Looking 
at EPA's own data everyone can see that Arkansas' forestry community 
has been doing a good job of protecting water quality.
    Senator Crapo, Senator Hutchison, and Congressman Dickey we thank 
you for your support of the forestry community.
                                 ______
                                 
                              Arkansas Forestry Commission,
                                     Little Rock, AR, June 1, 2000.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
    Dear Senator Crapo: Thank you for sponsoring S. 2417, the Water 
Pollution Program Enhancements Act of 2000. I support the bill and am 
pleased that Arkansas Senator Tim Hutchinson is one of the co-sponsors.
    Everybody wants to protect forest water quality. Although the EPA 
appears determined to install a regulatory approach, my Commissioners, 
my Governor, and I support the voluntary implementation of Best 
Management Practices to protect forest water quality. Accordingly, I am 
pleased your bill will provide grants to private landowners for water 
quality improvement projects.
    Finally, I think it is a great idea for the EPA to contract with 
the National Academy of Sciences to study the scientific basis of the 
development of TMDLs and to review the availability of other methods of 
achieving water quality standards. I have served on a National Academy 
forestry committee; the organization does outstanding work. I hope you 
will suggest to EPA and the National Academy that a southern State 
Forester should serve as a member of the study committee.
    Thank you for visiting Arkansas on June 12th; you are a very 
welcomed guest.
            Respectfully yours,
                                           John T. Shannon,
                                      Arkansas Forestry Commission.
                               __________
 Statement of Kit Hart, Senior Wildlife Biologist, The Timber Company 
                      Georgia-Pacific Corporation
                              introduction
    Mr. Chairman, members of the committee, my name is Kit Hart and I 
am Senior Wildlife Biologist for the Timber Company, which represents 
the timberland assets of Georgia-Pacific Corporation. I appreciate the 
opportunity to present my testimony today on behalf of the company and 
the forestry community on the Water Pollution Program Enhancement Act 
of 2000 (Senate Bill 2417) and on EPA's August 23 proposed regulations 
to revise the Total Maximum Daily Load (TMDL) program under Section 
202(d) and modifications to the National Pollutant Discharge 
Elimination System (NPDES) permit program under Section 402 of the 
Clean Water Act.
    Since most of you are already aware of EPA's August 23 proposed 
regulations, and the unnecessary regulatory burdens which they will 
impose on 8 million non-industrial private landowners, as well as 
industry and State agencies, I will not take much time to discuss the 
proposal. It is worth reiterating, however, that the proposed 
regulations amount to a reinterpretation of the Clean Water Act (CWA). 
EPA has proposed to eliminate silvicultural activities from 
categorization as nonpoint sources. Instead EPA has proposed to 
redefine them as point sources. The proposed rule would give EPA and 
NPDES-authorized States the authority to designate silvicultural 
activities as point sources requiring NPDES permits. We believe 
forestry activities are ``nonpoint'' sources and there is no legal or 
statutory authority for EPA to revise the regulations by eliminating 
the nationwide recognition of forestry as a nonpoint source activity 
merely to address some unidentified last resort situations on an 
individual basis. Every State with significant forest management 
activities has developed forestry best management practices or rules 
and submitted them to the Agency as part of the Section 319 nonpoint 
source program. EPA's own data reveals these programs are working, 
silvicultural inputs are declining and that forestry is a relatively 
minor cause of water quality impairment across the country. The 
proposed rules will unnecessarily interrupt mutually important progress 
toward reaching the goals of the CWA and fishable swimmable waters.

                              A BETTER WAY

    It is plainly evident from the reaction by the majority of State 
agencies, State water quality agencies, Governors and others that the 
proposed rules were formulated without the advice and input from those 
stakeholder groups who will be ultimately responsible for implementing 
the regulations. Mr. Chairman and members of the committee, there is a 
better way. It requires additional funding of the Section 319 program, 
greater cooperation among multiple State agencies engaged is nonpoint 
activities, more partnerships with private landowners and stakeholders 
and better dialog between EPA Regional Offices and the States to make 
improvements to water quality happen. This is exactly what S. 2417 
does. The bill recognizes that State nonpoint source programs are 
underfunded and increases funding. Specifically, the Bill increases 
funding of section 106 of the CWA to allow collection of reliable 
monitoring data, improve State lists, and focus resources where real 
problems exist so that people can roll up their sleeves and go to work. 
Even more importantly, Mr. Chairman, S. 2417 increases funding under 
section 319 and earmarks a portion of these dollars for State grants to 
private landowners to implement projects that will improve water 
quality. In addition the bill directs EPA to have the National Academy 
of Sciences prepare a report on TMDL development, costs of 
implementation and exploration of alternatives to protect water 
quality, another important need. Finally, the bill establishes a pilot 
program for EPA and States to work together to review and compare State 
programs that implement innovative and cooperative strategies to 
improve water quality. This is important because there are many good 
examples of cooperative partnerships that are efficiently addressing 
and improving water quality that can serve as models for others.
    Mr. Chairman, we support S. 2417. This concludes my remarks and I 
would welcome any questions you or members of the committee may have.
                               __________

 STATEMENT OF DAVID HILLMAN, PRESIDENT, ARKANSAS FARM BUREAU FEDERATION

    The Arkansas Farm Bureau Federation appreciates this opportunity to 
provide comments on the Water Pollution Enhancements Act of 2000, which 
addresses the Clean Water Act's Total Maximum Daily Load (TMDL) 
program. Arkansas Farm Bureau is the largest farm organization in the 
State with a membership of over 216,000 families. Our membership and 
others in the agricultural community are highly concerned with the 
potential impacts on EPA's proposed TMDL rules. This interest has been 
demonstrated already this year by producer attendance of over 8,000 
across three meetings held in the State on this subject.
    On August 23, 1999, EPA proposed sweeping changes to the current 
regulatory requirements for establishing TMDLs under the CWA. The 
proposed regulation has the potential to allow EPA to take over State 
land use and economic growth decisions under the pretext of reducing 
nonpoint source pollution. Thus far, State law and regulatory authority 
have always had primacy over Federal law and EPA's regulatory authority 
under the CWA.
    EPA's TMDL proposal enables EPA to override existing State law and 
regulatory process by mandating TMDLs that States must achieve. This 
removes the authority of the State to decide the best approach for 
dealing with water quality.
    The TMDL ``process'' proposed by EPA requires their review and 
approval and/or disapproval of a State's lists and TMDLs within 30 days 
of the date of submittal. If EPA disapproves a list or a TMDL, EPA must 
establish the list or TMDL for the State. Lee power to do this, to 
dictate load limits for nonpoint sources, is the power to dictate the 
land use to achieve those loads.
    Having reviewed the EPA's proposed regulation and current law, we 
have serious concerns over many of EPA's proposals. Congress designed 
the TMDL program in Section 303(d) to focus on waters impaired by point 
sources, as a means to calculate acceptable pollutant loads to assist 
State efforts to effectively regulate point source industrial 
activities, and to provide States the flexibility to achieve these 
water quality goals Congress enacted Section 319 to reduce the effects 
of nonpoint source (NPS) runoff for agricultural, silvicultural and 
other land use activities.
    Many of the provisions generate unnecessary controversy and 
confusion, and actually undermine successful Federal and State NPS 
water quality programs. EPA also has misjudged key determinants, such 
as the likely costs to State and Federal agencies and the private 
sector and the likely impacts of the proposed changes.
    The proposed regulations permit EPA to list nonpoint-source-
unpaired waters, to develop TMDLs for nonpoint-source-impaired waters 
and to establish implementation plans for nonpoint-source-impaired 
waters. In other words, the proposal provides for Federal land use 
regulation. EPA apparently believes they know how to require States to 
tell farmers and ranchers how to manage their crops and use their land.
    Congress elected to treat point and nonpoint sources differently 
for good cause. Congress realized that because of its diffuse and 
complicated nature, nonpoint source pollution did not lend itself to 
rigid point source-type controls. Rather, nonpoint source pollution had 
to be managed through flexible standards Watershed managers and 
nonpoint source professionals are well aware of this problem. Farmers 
and ranchers can't control the rain! But nonpoint source TMDLs expect 
them to. All four components of the term--Total, Maximum, Daily, and 
Load--imply a constant, engineered and controllable environment. For 
agriculture, this means that farmers are in jeopardy of breaking the 
law any time a significant rainfall event occurs. Such an outcome is 
preposterous.
    Congress recognized in 1972, while nonpoint sources can be managed 
``to the extent feasible,'' they can not, and should not be expected to 
meet any quantifiable daily load limitations. Section 319 Nonpoint 
Source Program merely encourages States to reduce pollution ``to the 
maximum extent practicable'' through best management practices.
    Compliance with Section 303(d) is not achieved until water quality 
standards are attained. For nonpoint source runoff, this raises the 
not-so-hypothetical possibility that a source would have to be 
eliminated from a watershed in the event that best management practices 
(BMPs) and modified BMPs ultimately prove ineffective in attaining 
water quality standards This does not make sense to reasonable people 
who understand the vagaries of weather. The TMDL Federal Advisory 
Committee reached a consensus agreement that BMPs implemented to 
achieve TMDLs would have to pass the bar of practicability 
(economically achievable) as established in Section 319. EPA has failed 
to introduce the concept of practicability in either the preamble or 
the proposed TMDL regulation.
    The proposed regulations do not adequately address data issues--
successful TMDL development and implementation will occur when States 
have attainable Water Quality Standards, when they have 303(d) lists 
which are derived by an ambient monitoring program, and not by drive-by 
assessments or ``windshield monitoring.'' States will need to devote 
sufficient resources to the TMDL development process in order to 
provide scientifically adequate input parameters and robust stakeholder 
involvement in the entire process. The TMDL program fail if 
environmental extremists are permitted to highjack the process to their 
agenda of Federal watershed zoning.
    EPA should revise its standard for data and require only the use of 
reliable data, e.g., to require the use of ``all reliable and credible 
existing and readily available water quality-related data and 
information.''
    The proposed regulations unlawfully allow EPA to designate nonpoint 
sources as point sources. They propose to regulate nonpoint sources, 
private forestry and livestock activities for such practices as 
harvesting, site-preparation, road construction, thinning, prescribed 
burning, pest and fire control, land application of organic nutrients, 
and nutrient utilization plans, by requiring landowners to obtain point 
source discharge permits for these land use activities. This proposed 
action is an unjustifiable expansion of the EPA's authority, 
constitutes significant Federal intrusion into private activities, and 
overrides State arid private control of land-use decisions.
    Agriculture is willing to be a part of reasonable and lawful water 
quality management programs. Farmers and ranchers are ready to become 
engaged, active stakeholders in the water quality management process, 
but the process must be reasonable This new cooperative public policy 
structure will not be easy, it will take a long time to develop 
successful stakeholder consensus, the interpersonal relationships, and 
trust in the Agency for the process to succeed. Experience dictates 
that the only workable solution to watershed management is the 
``bottoms up'' approach as opposed to the ``command and control'' EPA 
has proposed.
    The provisions set forth in S.B. 2417 represents a reasoned 
approach to developing a program that meets the concerns expressed 
above. Accurate data upon which difficult rulemaking is based, 
additional resources for States address their rightful 
responsibilities, and a critical review of this complicated and 
confusing issue are all called for in the bill and are needed to assure 
landowners of fair and equitable regulatory action Additional time is 
needed to evaluate and, possibly rethink the TMDL concept. It is more 
important to get the rules done right than to get them done quickly.
    Over the decades farm and ranch families have achieved 
extraordinary conservation gains through voluntary, incentive-based 
programs to conserve fragile soils, wetlands, protect water quality and 
wildlife habitats.
    The nonpoint source issues outlined in EPA's TMDL proposal are best 
addressed through incentive-driven programs, implemented by those with 
the most interest in the environmental quality of America's land and 
water resources. That is, the people who own and work with those 
resources on a daily basis--America's farmers and ranchers.
    We applaud your efforts in developing S. B. 2417 as we do others in 
the Congress who have offered legislative remedies to the TMDL problem.
                               __________

    STATEMENT OF VINCE BLUBAUGH, G.B. MACK & ASSOCIATES, EL DORADO 
                            CHEMICAL COMPANY

    Mr. Chairman and members of the committee: My name is Vince 
Blubaugh, I am a principal with G.B. Mack & Associates, an 
environmental consulting firm located in Bryant, AR. On behalf of my 
client, El Dorado Chemical Company, I greatly appreciate the 
opportunity to present our views on S. 2417, the Water Pollution 
Program Enhancements Act of 2000.
    Since the passage of the Clean Water Act, we have seen the 
evolution of its programs go from the development of effluent 
guidelines for point sources (to ensure national consistency among 
dischargers) to the derivation of extremely stringent water quality-
based effluent limitations which require point sources to spend 
millions of dollars to meet new levels of treatment under their NPDES 
permits. Now, with the advent of the 303(d)/TMDL program requirements, 
there is a recognition that point source controls are not the only 
solution to water quality problems in many situations. However, the 
implementation of the 303(d)/TMDL program has often advanced the 
requirements beyond the knowledge and/or resources of the regulatory 
agencies involved in the process. Arkansas is a case in point.
    The Arkansas Department of Environmental Quality is recognized 
nationally by its peer agencies as a leader in the protection of water 
quality through such programs as the development of ecoregion-based 
water quality standards, implementation of toxicity testing and 
maintenance of a comprehensive ambient water quality monitoring program 
designed to obtain real world data concerning the conditions of the 
State's waters. The agency's efforts are to be commended as it has been 
very successful in addressing water quality issues in the State, 
especially in light of the limited resources at its disposal.
    One of the keys to the ADEQ's success has been its ability to 
address problem areas as it determined and in timeframes that allowed 
it to develop sound technical approaches. An example would be the 
ecoregion research which, among other things, completely revamped the 
dissolved oxygen standards in the State, thereby resulting in real 
world, reasonable permitting requirements on municipal and industrial 
point sources. But this was a multiyear process, taking approximately 5 
years from the initiation of the field studies to regulatory 
finalization. Yet, it provides a great parallel to how the 303(d)/TMDL 
process should be conducted to ensure a technically sound, cost-
effective process.
    S. 2417 correctly identifies many of the problems involved in the 
implementation of the 303(d)/TMDL program across the nation. Some of 
the noted deficiencies are insufficient State resources to manage the 
program and the lack of sound science and water quality monitoring data 
to properly implement the program. All of these are quite problematic 
and can result in technically unsound, unrealistic control strategies 
which will not achieve better water quality throughout the nation.
    The proposed legislation offers a moratorium on the finalization of 
the USEPA's final TMDL regulations pending studies by the National 
Academy of Sciences on many of the technical issues listed above. This 
at a minimum should be done. In addition to this, we would recommend 
that the committee consider broadening the moratorium to address the 
current TMDL program requirements. This is because factors such as 
artificially short implementation timeframes due to court orders and 
budgetary considerations will result in technically unsound TMDLs being 
imposed on both point and nonpoint sources.
    We also recommend that consideration be given to adding provisions 
to allow the States flexibility in receiving the appropriations set out 
in the bill. This is because, due to State budgetary timeframes, State 
agencies may not be able to direct their resources in order to maximize 
the use of such funding. In addition, we have great concern that the 
technical tools needed to create valid TMDLs will not be available and 
the unsound science will be utilized in order to meet artifical 
regulatory and fiscal considerations.
    In conclusion, we appreciate the opportunity to make these comments 
and appreciate the work of the committee to address this extremely 
important issue. The 303(d)/TMDL program is evolving, and anything that 
can be done to ensure a more systematic, technical evolution is 
warranted. S. 2417 is a good start in that direction.
                               __________

            STATEMENT OF ARKANSAS HOME BUILDERS ASSOCIATION

    The 2,000 member firms of the Arkansas Home Builders Association 
(AHBA) are currently on record as being strongly opposed to the recent 
initiative of the U.S. Environmental Protection Agency (EPA) to make 
significant changes in the Federal Clean Water Act, through its Total 
Maximum Daily Load (TMDL) rulemaking authority.
    The proposed changes not only will impact how each State runs its 
TMDL Program, but they also would place restrictions on new ``point'' 
discharges--including construction activities in areas where the water 
supply has been deemed to be ``impaired''. While the AHBA supports the 
need for programs to protect the nation's waters, we believe the 
proposed changes place a disproportionate burden on construction 
activities. In addition it is our feeling that the proposed changes to 
the rule have been made without the benefit of a clear and 
comprehensive study of the subject. States in particular, would be 
asked to change their TMDL programs without the benefit of high quality 
data regarding how best to make such changes. While EPA has been 
somewhat unclear as to what improvements will come to the environment, 
as a result of these changes, the construction industry has a very good 
idea as to the negative impacts that will occur if the TMDL rule is 
finalized, as proposed. It is reasonable to expect that the cost of 
buying a new home will escalate, creating a further strain on housing 
affordability; due to increased permitting costs, the need to use more 
stringent best management practices, unnecessary delays, and the 
creation of new mechanisms that can be used by special agenda groups to 
further thwart legitimate and sustained residential development.
    S. 2417 provides the resources that States such as Arkansas need to 
improve their ability to collect high quality water monitoring data, to 
develop their ``impaired waters'' list, and to expand watershed 
management strategies to address the remaining water quality concerns. 
In addition, this legislation will give the National Academy of 
Sciences an opportunity to study the scientific basis underlying the 
changes to the rule before they go into effect.
    It would seem to our organization to be only right and proper that 
EPA have the benefit of more comprehensive scientific information 
before they finalize the proposed TMDL regulations. S. 2417 establishes 
a common sense and scientifically grounded approach to this most 
difficult and important issue, and we strongly support its passage.
    These remarks prepared and submitted on behalf of the Arkansas Home 
Builders Association by Bruce E. Blackall, Executive Director.
                               __________

        RESOLUTION SUBMITTED BY FRED TOWSE, USNR-HEMCO DIVISION
                         RESOLUTION NO. R-98-1

    Be it Resolved by the Quorum Court of Garland County, State of 
Arkansas, a Resolution to be Entitled:

    ``A Resolution expressing a desire to be included in any 
discussions, before any policies or laws are enacted by the Federal 
Government, the State of Arkansas or their Agencies.''

    Whereas, Federal and State lands make up a substantial part of 
Garland County; and,
    Whereas, Garland County is directly affected by State and Federal 
planning decisions; and,
    Whereas, Garland County's economy is dependent on business 
activities on Federal and State lands; and,
    Whereas, land is essential to local industry and residents, it 
shall be the desire of this County that the design and development of 
all Federal and State land disposals, including land adjustments and 
exchanges, be carried out to the benefit of the citizens of Garland 
County; and,
    Whereas, it is essential to protect the custom and culture 
associated with forest and forestry production in Garland County by 
protecting economic opportunity and a free enterprise system; and,
    Whereas, the people of Garland County, State of Arkansas, accept 
support and sustain the Constitutions of the United States and the 
State of Arkansas; and,
    Whereas, the people are best served when government affairs are 
conducted as close to the people as possible (i.e., at the County 
level); and,
    Whereas, it is a primary goal of Garland County government to 
protect the customs and culture of county citizens through the 
protection of private property rights, the facilitation of free 
enterprise system, and the establishment of a process to encourage 
self-determination by local communities and individuals.
    Now, Therefore, be it Resolved by the Quorum Court of Garland 
County, Arkansas;

    SECTION I. That all natural resource decisions affecting Garland 
County should be guided by four basic principles:
    1. Protecting private property rights.
    2. Protecting local custom and culture.
    3. Maintaining traditional economic structures through self-
determination.
    4. Protecting new economic opportunities through reliance on a free 
enterprise system.
    SECTION II. It is the desire of Garland County that Federal and 
State agencies shall inform the county of all pending actions affecting 
Garland County and its citizens and coordinate with them in the 
planning and implementation of those actions.
    SECTION III. It is the desire of Garland County that Federal and 
State agencies proposing actions that will impact Garland County 
prepare and submit in writing, and in a timely manner, report(s) on the 
purposes, objectives and estimated impacts of such actions (including 
economic) to the Garland County Quorum Court. Said report(s) should be 
provided to the Garland County Quorum Court for review and coordination 
prior to Federal or State passage of any action.

    Attest: Nancy Johnson, Garland County Clerk.

    Approved: Larry Williams, Garland County Judge.

    Sponsor: Mickey Gates, Justice of the Peace.

    Date: March 9, 1998.

    
    
                               __________

     YOUR LAND, YOUR OPTIONS: WHAT YOU SHOULD KNOW BEFORE YOU SELL 
                              YOUR TIMBER

    This guide provides a brief overview for landowners who want to 
know more about the range of options for managing forests. No matter 
which approach you take, whether it be long-range timber management, 
conversion to other uses, or doing nothing after a harvest, there are 
certain steps you should take before you decide to sell your timber.
    1. Develop a management plan before you harvest.--Don't make the 
mistake of selling your timber without first giving serious thought as 
to what you'd like to do with your land in the future. Because what and 
how you harvest today has a big impact on what you can do with your 
land tomorrow.
    A management plan outlines how and when to reach your goals and 
objectives on a piece of property. A plan also helps guarantee that the 
decisions you make are not sacrificed due to haste or lack of 
information. Your goals should be prioritized to reflect what resources 
you have and what you desire to achieve. Unlike a signed contract, a 
plan is subject to revision to meet changing needs, concerns or 
conditions. A well-developed plan helps you predict expenses and 
incomes related to the property, and serves as a system for organizing 
financial information for tax purposes. Furthermore, a management plan 
is often required for financial assistance from many government 
programs.
    2. Become knowledgeable about your land, your timber and your 
options.--You can't manage something if you don't know what you have to 
begin with. Knowing as much as possible about your property and its 
history can save considerable expense in developing and implementing a 
management plan. For example, is your land best suited for forest or 
for pasture? What are the natural and man-made features of the property 
that can impact forest management activities? Which tree species are 
most suited for the property, and are they marketable?
    If you are considering selling your timber, it's important to take 
an inventory of your current timber resources. What is the current 
distribution of timber species? How old are the trees and how large? 
Are they marketable? How much are they worth? Should you sell all of 
them now, or would you be better off keeping the best growing and best 
quality trees for a future sale? How much will it cost to regenerate 
your forestland?
    If you aren't confident that you can make these decisions without 
some help, you're not alone. Trained forestry professionals can help 
you get the most from your timber sales and can assist you in long-term 
management planning as well. Consult the Directory on the reverse side 
of this publication for additional assistance or call the Arkansas 
Forestry Association toll free at 1-888-MYTREES (1-888-698-7337) for a 
list of assistance in your area.
    3. Make sure the forestry professionals you work with are reputable 
and understand your needs.--The following are a number of sources from 
which you can obtain forestry management and related assistance: (1) a 
private forestry consultant who can assist you with a wide range of 
activities including managing sales and harvest operations; (2) a 
county forester through the Arkansas Forestry Commission or another 
natural resource agency; (3) a procurement forester who is employed by 
a forest products company with which you are contracting or considering 
contracting a sale; or (4) a professional forester employed by a forest 
products company's Landowner or Management Assistance Program (LAP or 
MAP).
    When considering working with any of these forestry professionals, 
it is important that their views match your own. Does he or she have a 
clear understanding of your needs and objectives? How much will it cost 
for consulting services and harvesting operations? Does he or she 
provide a written contract with a protection clause against unwanted 
damage? How will he or she conduct the sale of your timber? What is a 
reasonable monetary range of bids for harvesting contracts? What 
written plans, inventories and site quality assessments will be 
generated? You can ensure much of this to the best extent possible by 
insisting on the use of a written contract.
    Also ensure that prospective forestry professionals have a clear 
understanding of the regeneration method you wish to use and make sure 
that those objectives are incorporated into the harvesting operation. 
Specifically mark any areas that you do not want cut, and require that 
the sales contract States that these areas are excluded from the site.
    If you are unable to find a forestry professional in your local 
area who is willing to implement your management ideas, you can create 
your own plan and contract with loggers directly during a timber sale. 
This is not recommended for landowners who may lack the necessary 
technical expertise.
    The same guidelines outlined above apply when considering 
prospective logging contractors. Insist on visiting sites where the 
logger has previously harvested that are similar in type to yours. Ask 
to speak to the owners and others who can serve as a reference for his 
or her work. Ideally, you should work with a logging contractor and 
crew that have participated in Arkansas' Logger Training and Education 
Program, one of the nation's leading professional education programs 
for loggers. The Arkansas Timber Producers Association maintains a list 
of all loggers who have participated in this program. Consult the 
Directory on the reverse side of this publication for additional 
information.
    4. Protect soil and water during a harvest and as part of long-term 
forest management.--In light of Federal water law, it is essential that 
you make a positive effort to control or minimize the release of 
pollutants into lakes and streams as a result of harvesting and 
intensive forest management activities. Forest landowners, forest 
products companies, forestry consultants and logging crews in Arkansas 
are asked to adhere to a set of voluntary guidelines referred to as 
Best Management Practices (BMPs), which are designed specifically to 
protect water quality and, more broadly, to enhance the land and 
environment.
    Arkansas' voluntary BMPs are a set of suggested techniques that 
have been found to be appropriate for the control of nonpoint sources 
of pollution, such as soil erosion and stream sedimentation, at a given 
site. The voluntary nature of these guidelines reflects the public's 
confidence that Arkansas' forestry community is committed on paper and 
in practice to protecting soil and water.
    Specific consideration should be given to managing lands adjacent 
to streams and drainage courses in various ways to protect their 
integrity and encourage wildlife use. These streamside management 
zones, composed primarily of hardwood trees, help protect water 
quality, preserve natural diversity and make harvesting more 
aesthetically pleasing.
    In an effort to protect soil and water quality and to avoid 
unreasonable government regulations in the future, make a commitment to 
using BMPs during a harvest and as part of long-term forest management. 
Insist that the consultants and loggers you work with do so as well. 
Include a BMP clause in your sales and harvesting contracts if 
possible. You can obtain a complete copy of Arkansas' Best Management 
Practices (BMP) Guidelines for Forestry free of charge through the 
Arkansas Forestry Commission. Consult the Directory on the reverse side 
of this publication for more detailed information or complete and 
return the postcard on this page.
    5. Consider sustainable forestry as an option.--From Ozark Region 
hardwoods to southern pines and bottomlands, Arkansas' forests are 
abundant thanks to hard work and proper management. Not only do forests 
help ensure clean water, stable soil and enhanced air quality, but they 
supply an increasing global population with thousands of products each 
day. Best of all, forests are renewable.
    To that end, Arkansas' forestry community is committed to practices 
that promote sustainable forestry. This includes growing more timber 
than it harvests, protecting fish and wildlife habitat and adhering to 
Best Management Practices. It also includes being a ``good neighbor'' 
by limiting the visual impacts of harvesting and encouraging others to 
do so. In short, the forestry community is working to ensure that 
Arkansas' forests are growing for the future. With sound information, 
commitment and long-range planning, you too can be a part of this 
legacy.
    To obtain more information and assistance on sustainable forestry 
including reforestation, forest management planning, wildlife habitat 
enhancement, BMPs, harvesting methods, Arkansas' Tree Farm Program and 
educational opportunities, please fill out the postcard below. Or call 
the Arkansas Forestry Association toll free at 1-888-MY TREES (1-888-
698-7337).
                                 ______
                                 

     JIM AND BILLIE PRATT, ARKANSAS TREE FARMERS OF THE YEAR--1995

               ALL IN THE FAMILY--AS TOLD BY BILLIE PRATT

    Sustainable forestry wasn't visible on the horizon in the 1920's 
and 1930's when my father, W.L. Kirby, bought 11 tracts of tax-
delinquent land in the southern flanks of the Ouachita Mountains. Yet 
he appreciated the land for all of its values and passed it on to his 
family in undivided interests.
    Up until the early 1980's, our tracts were managed like most of the 
rest of the region. Site preparation and tree planting was almost 
unheard of during this time. Diameter limit harvests--where all trees 
greater than 12 inches in diameter at the stump were cut--were a common 
procedure. This commonly used system was considered the best in the 
mid-1950's, but because it took the biggest trees and left the smaller 
and less vigorous, forest growth and quality began to decline.

                   ENLISTING PROFESSIONAL ASSISTANCE

    Forestry techniques changed when we began working with Georgia-
Pacific's (which was then Nekoosa Corporation) Forest Management 
Assistance Program in the Eighties. On their advice, a structured plan 
was set up for harvesting, then replanting sections with genetically 
improved loblolly pine seedlings.
    We continue to work with G-P foresters and Arkansas' Tree Farm 
Program to harvest, replant and maintain our forests year after year. 
The plan that guides our Tree Farm includes a variety of environmental 
measures to protect soil and other natural systems. We ensure the use 
of wide streamside management zones (SMZs), composed of hardwood trees 
to protect water quality, and also manage for fish and wildlife 
habitat.

                        ON SUSTAINABLE FORESTRY

    Our ultimate goal is a sustained growth of trees returning regular 
income that will allow us to retain and maintain the land. We also plan 
for sustained family ownership. We have two grandsons who will be 
coming into the partnership, and we hope to try to instill in them a 
sincere love for the land. Because trees have been planted and worked 
over intervals for many years, we're certain that there will always be 
some areas in mature forests, some being harvested, some being thinned 
and some being planted. We are committed to sustainable forestry--
cycling over many acres and many years.
                                 ______
                                 

Jim Francis, Arkansas Tree Farmer of the year--1999; Southern Regional 
                     Outstanding Tree Farmer--1980

                         A WEEKEND TREE FARMER

    While I have earned our family's living for the past 45 years as a 
life insurance agent, I am by avocation a ``PNIFLO''--a Private Non-
Industrial Forest Landowner, and have been a ``small-time, part-time 
weekend tree farmer'' since 1961.
    Our woodlands consist of three tracts, two in Nevada County and one 
in Clark County, comprising somewhat less than 600 acres. My management 
plan for these woodlands has as its principal objective the production 
and sale of forest products--primarily pine sawtimber, pine poles and 
pine pulpwood. I practice ``multiple use management'' with selective 
harvests at intervals (cutting cycles) of approximately 10 years, stand 
by stand. Through this type of selective, continuous yield harvesting, 
I try to produce timber sale revenue at fairly regular intervals.
    A secondary but extremely important objective is the maintenance 
and enhancement of wildlife habitat for both game and non-game species. 
This provides hunting opportunities for my family and friends, and adds 
to our enjoyment of the wonders and beauty of nature as we visit our 
woodlands at all times of the year.

                   ENLISTING PROFESSIONAL ASSISTANCE

    Although I have been involved in the management activities on our 
Tree Farm other than commercial harvesting, I have relied upon the 
advice and assistance of forestry professionals throughout the years to 
assure attainment of my management goals and objectives. I have 
participated in the landowner assistance programs of two forest 
industry companies, have engaged the services of consulting foresters, 
have contracted for prescribed burning by the Arkansas Forestry 
Commission, and received assistance from the USDA Soil Conservation 
Service.

                        ON SUSTAINABLE FORESTRY

    Practicing sustainable forestry ensures that my two sons and future 
generations have all of the benefits that forests provide, including 
essential forest products plus the amenities such as recreation, 
aesthetic experiences and the essentials of clean air and pure water. I 
hope that my efforts, together with those of all members of the 
forestry community in our State and nationwide, will continue to assure 
that private landowners and their progeny have the right to actively 
manage their woodlands for these benefits forever.
                                 ______
                                 

  Dr. Robert Parkes, Arkansas Tree Farmer of the Year--1991; Southern 
                 Regional Outstanding Tree Farmer--1992

                 MANAGEMENT GOALS REFLECT FAMILY VALUES

    My parents and I started buying the land that now makes up our 
family Tree Farm nearly 25-years ago. It is located in the foothills of 
the Ozark Mountains in Northwest Arkansas, bordering the Ozark National 
Forest. When we first started, the land had been cut over--without 
being reforested. Some of the trees were cut all the way to the edge of 
two mountain rivers that come together on our property. The top soil 
was washing away and erosion was scarring the landscape.
    We discussed our goals and objectives and tried to visualize what 
we wanted this land to be. My father and I could see the long term 
financial rewards of reforesting the lands. Keeping the rivers clean by 
controlling erosion and sediment run-off was also a big priority for 
me. My mother, an amateur naturalist, wanted diversity in plants, tree 
species and wildlife.

                   ENLISTING PROFESSIONAL ASSISTANCE

    We contacted and received assistance from a number of forestry 
professionals including local foresters at the Arkansas Forestry 
Commission, Game and Fish Commission, and the Soil and Water 
Commission, among others. We also received assistance through Green Bay 
Packaging, a forest products company in our area that maintains a 
Landowner Assistance Program. These forestry professionals helped us 
realize our goals and management objectives for the property.
    We worked extensively on setting up streamside management zones 
next to our pastures and controlling erosion on steeper land. Much of 
this was done by planting fast-growing pines. We also concentrated on 
establishing wildlife habitat, especially for the bobwhite quail. At my 
mother's request, we left buffer zones to reduce the visual impact of a 
harvest. Most recently, we initiated a number of wetlands enhancement 
activities on our properties. As a result of these efforts, our Tree 
Farm is healthy, productive, diverse and beautiful.

                        ON SUSTAINABLE FORESTRY

    My twin daughters share the enthusiasm and are learning to be self-
sufficient while making a wonderful contribution to the environment. At 
the same time, our Tree Farm provides income for me and my family and 
serves as a reminder of how proper management can meet a wide range of 
needs for generations to come.

                        Directory of Assistance

                   FORESTRY AND WILDLIFE CONSULTANTS

    Private consultants provide services ranging from development and 
management plans to implementation of on-the-ground practices. For a 
listing of forestry professionals in your area contact the Arkansas 
Forestry Association toll free at 1-888-MY TREES, fill out the attached 
postcard, or consult the following additional sources: listings in 
telephone directories; advertisements in publications such as Tree 
Farmer Magazine, Forest Farmer and the Journal of Forestry, among 
others; Tree Farm representatives of the Arkansas Forestry Association 
and the personnel of public agencies listed in this publication; or 
forest products companies that maintain Landowner or Management 
Assistance Programs.

  ARKANSAS FORESTRY COMMISSION (AFC), 3821 W. ROOSEVELT ROAD, LITTLE 
                     ROCK, AR 72214, (501) 664-2531

    The Arkansas Forestry Commission is a State agency dedicated to 
supporting and enhancing forestry-related economic development 
opportunities in Arkansas.
    The AFC will provide free of charge a range of technical assistance 
such as woodland examinations, preparation of forest management plans, 
regeneration recommendations, marketing information, forest health 
information and other pertinent information related to the management 
of individual tracts of land. It also provides assistance through a 
number of government sponsored cost-share and incentive programs such 
as the Forestry Incentives Program and the Forest Stewardship Program.
    The AFC will provide a number of technical services for a fee 
including timber marking, tree planting (on a limited basis), firelane 
construction and prescribed burning.
    It owns and operates a tree improvement complex and a tree seedling 
nursery for production of pine and hardwood seedlings for sale to 
private landowners.
    Forestry assistance can be obtained by contacting the nearest AFC 
office in your county or by contacting the State office headquarters in 
Little Rock.

ARKANSAS TIMBER PRODUCERS ASSOCIATION (ATPA) 2311 BISCAYNE DRIVE, SUITE 
               115, LITTLE ROCK, AR 72227, (501) 224-2232

    The Arkansas Timber Producers Association is a nonprofit membership 
organization that represents and promotes the interests of Arkansas' 
professional logging and timber producing industry. ATPA administers a 
professional logger training and education program and maintains a list 
of all participants enrolled in training. ATPA will make this 
information available to landowners who are seeking to verify the 
credentials of prospective logging contractors. In addition, landowners 
are encouraged to attend training sessions in their area.

 UNIVERSITY OF ARKANSAS COOPERATIVE EXTENSION SERVICE (CES), P.O. BOX 
               391, LITTLE ROCK, AR 72203, (501) 671-2000

    The Cooperative Extension Service maintains a network of county 
offices that provide information and educational services. Services 
include onsite evaluations of management practices, timber marketing 
information, forestry budgets, diagnostic services such as soil samples 
and disease identification, and assistance with wildlife management 
plans. The CES also informs landowners of any costsharing programs that 
are available. For assistance, contact the county extension office 
nearest you or call the number listed above.

  ARKANSAS GAME & FISH COMMISSION (AGFC), 2 NATURAL RESOURCES DRIVE, 
                 LITTLE ROCK, AR 72205, (501) 223-6300

    The Arkansas Game & Fish Commission is responsible for managing the 
State's fish and wildlife resources to provide sustainable public 
hunting and fishing opportunities. AGFC's Wildlife Management Division 
provides technical advice for wildlife management on private lands, 
assistance for the control of nuisance animal problems, and information 
on how to apply for cost-sharing programs that benefit wildlife. The 
AGFC's Informational and Educational Services provide landowners with a 
variety of information through magazines, leaflets, brochures and other 
materials. Landowners should contact the local AGFC office in their 
county listed in the government pages of the telephone directory or 
contact the main number listed above for additional information.
united states department of agriculture natural resources conservation 

   SERVICE (NRCS), ROOM 5404, FEDERAL BUILDING, 700 W. CAPITOL AVE., 
                 LITTLE ROCK, AR 72201, (501) 324-5418

    The Natural Resources Conservation Service provides national 
leadership in the conservation and wise use of soil, water and related 
natural resources through landowner assistance programs that provide 
technical and financial assistance (Forestry Incentives Program, 
Wetland Reserve Program, Waterbank Program and others). Landowner 
assistance is available in soil and water management, conservation work 
in woodlands, pond construction and improvement of fish and wildlife 
habitats. Assistance from NRCS can be obtained through the local 
conservation districts or call the number listed above.

    ARKANSAS ASSOCIATION OF CONSERVATION DISTRICTS (AACD), 101 EAST 
       CAPITOL, SUITE 350, LITTLE ROCK, AR 72201, (501) 682-2915

    The Arkansas Association of Conservation Districts is a nonprofit, 
non-governmental organization representing the 76 natural resource 
conservation districts across the State. Member districts are local 
units of State government that work with Federal and State resource 
management agencies and local landowners to promote the conservation 
and wise use of the nation's natural resources.

FARM SERVICES AGENCY (FSA), 700 W. CAPITOL, ROOM 5416, LITTLE ROCK, AR 
                         72201, (501) 324-6271

    The Farm Services Agency, formerly the Agricultural Stabilization 
and Conservation Service, is an agency in the U.S. Department of 
Agriculture (USDA). It administers several programs for landowners 
including the Conservation Reserve Program designed to enhance 
environmental and wildlife benefits by converting eligible cropland to 
trees or other permanent vegetative cover. The Agricultural 
Conservation Program shares the cost of conservation practices with 
farmers and ranchers and helps protect soil, water, wildlife and 
woodland resources. FSA also maintains a number of other program 
responsibilities that were formerly performed by the Farmers Home 
Administration. Contact the local Farm Services Agency office nearest 
you by consulting the phone directory under the government listings or 
by calling the number listed above.

U.S. FISH AND WILDLIFE SERVICE (USFWS) WILDLIFE AND HABITAT MANAGEMENT 
      OFFICE, P.O. BOX 396, ST. CHARLES, AR 72140, (501) 282-3213

    ``The mission of the United States Wildlife Service is to conserve, 
protect, and enhance the Nation's fish and wildlife and their habitats 
for the continuing benefit of the American people.'' The USFWS 
administers the Partners for Wildlife Program, which offers financial 
and technical assistance to landowners who wish to restore wetland 
habitats on lands that are currently degraded or converted wetlands, 
especially prior converted or farmed wetlands, or are riparian, stream 
or other critical habitats. The USFWS also administers a Challenge Cost 
Share Program that is similar to the Partners for Wildlife Program 
except that it can be used to a greater extent to fund enhancement and 
other projects which do not necessarily involve taking land out of 
production, or restoring native self-sustaining vegetation.

    ARKANSAS SOIL AND WATER CONSERVATION COMMISSION (ASWCC), 101 E. 
    CAPITOL, SUITE 350, LITTLE ROCK, ARKANSAS 72201, (501) 682-3954

    The mission of the Arkansas Soil and Water Conservation Commission 
is to ``manage and protect our water and land resources for the health, 
safety and economic benefit of the State of Arkansas.'' The ASWCC also 
administers the Wetland and Riparian Zone Creation Tax Credit Program, 
which provides financial incentives (certificate of tax credits and 
other incentives) to private landowners for the restoration and 
enhancement of wetlands and riparian zones, and the creation of new 
wetlands and riparian zones when possible.

 ARKANSAS NATURAL HERITAGE COMMISSION (ANHC), 1500 TOWER BUILDING, 323 
          CENTER STREET, LITTLE ROCK, AR 72201, (501) 324-9150

    The Arkansas Natural Heritage Commission is responsible for 
identifying rare species and exemplary plant communities (natural 
areas) in Arkansas and working to protect them through the State 
environmental review process, cooperative management with landowners 
and acquisition of fee title or partial interest in land. For 
additional information on ANHC's Wetland Inventory Program, Land 
Acquisition Program and Wetland Easement Program, please call the 
number listed above.

  THE NATURE CONSERVANCY ARKANSAS FIELD OFFICE, 601 NORTH UNIVERSITY 
               AVE., LITTLE ROCK, AR 72205, 501-663-6699

    The Nature Conservancy offers a variety of conservation 
arrangements for landowners: management agreements, acquisition 
(including partial interests and fee title); land exchanges; 
conservation easements retained life estates (donate home or farm for 
tax benefits while retaining lifetime use); bargain sales; donations; 
technical assistance for identification and management of natural 
resources through information transfers and site visits; and 
restoration and enhancement of bottomland hardwoods.

  DUCKS UNLIMITED ROUTE 2, BOX 104A, DEWITT, AR 72042, (501) 282-3788

    The mission of Ducks Unlimited is to fulfill the annual life cycle 
needs of North American waterfowl by protecting, enhancing, restoring 
and managing important wetlands and associated uplands. Ducks Unlimited 
works with the Arkansas Partners Project, a cooperative effort that 
offers free technical assistance, water control structures, and 
reforestation equipment/cost-sharing to restore and enhance selected 
wetlands and agricultural fields for waterfowl during winter. This 
project applies to landowners who own land in 32 designated Arkansas 
counties.
                         other helpful numbers
    Arkansas Tree Farm Program, Toll free (888) MY TREES; Arkansas Farm 
Bureau, (501) 224-4400; Arkansas Cattleman's Association, (501) 224-
2114
                               __________
  [From the Little Rock (AR) Arkansas Democrat Gazette, December 30, 
                                 1999]
                      Tree Farmers Fear EPA's Bite
                   forests may see clean-water rules
                           (By Chuck Plunket)
    Come January, forget Y2K, says tree farmer Jim Francis. He worries 
about the EPA.
    For years the Environmental Protection Agency has left him alone 
but by late January the agency could decide whether to implement some 
bold new regulations for the timber industry--a stringent permitting 
process to protect streams and other waterways.
    It's a prospect that has left the longtime independent tree farmer 
worried that the end of his world is surely at hand.
    ``This is scary,'' Francis says. ``This is preposterous.''
    Francis, 77, first got into tree farming in 1964, a few years after 
he settled in Little Rock as a life insurance salesman. He eventually 
bought about 600 acres in Clark and Nevada counties and got hooked on 
growing trees.
    Like a fisherman or hunter would show off a mounted trophy, or an 
athlete his medals, Francis shows off cross sections of trees he has 
harvested over the years. Some he has lovingly sanded smooth, others 
laminated.
    To watch Francis holding one of the sections, counting through its 
age rings, getting excited about the wide-ringed good-growth years, is 
to watch a man obsessed.
    ``Forestry is a beautiful gem,'' Francis says.
    Today that gem has become one of the most powerful employers in 
Arkansas. It's an industry that environmentalists say has enjoyed 
almost complete freedom from regulation far too long.
    Francis is not alone. In Arkansas there are more than 120,000 
small, private landowners with 20 acres or more who engage in the 
forest industry in some capacity. And the number is growing.
    Joined by a powerful group of industrial participants like Georgia 
Pacific, Green Bay Packaging, International Paper and Weyerhaeuser, the 
forest industry in Arkansas accounts for 43,000 jobs at 2,500 timber 
harvesting operations and wood product manufacturing plants.
    In the Natural State people are planting trees by the millions, and 
they would plant more if they could.
    The popular notion is that dominance in tree farming resides at the 
corporate level, but in reality, small independents account for most of 
the activity.
    Private owners control 58 percent of the State's forests, compared 
with corporate growers' 24 percent. Public lands make up the remaining 
18 percent. The independents' trees account for 48 percent of annual 
growth, corporate growers' trees for 37 percent. At the U.S. Forest 
Service's last count in 1995, timberland in the State increased 7 
percent since 1988. The increase meant that more than half, or 55 
percent, of Arkansas' 33.2 million acres are now forested.
    Most of that is coming from the independents.
    This year, nurseries in Arkansas planted at, near or exceeding 
capacity. The nurseries' managers say they could easily have sold more 
seedlings if they had them.
    At the International Paper nursery in Bluff City, manager Ron 
Campbell says he's breaking a rule of thumb by planting in soil he 
normally would leave unused to allow it to replenish its nutrients. 
Nurseries usually let beds rest for 2 years after 2 years of use.
    The Bluff City nursery capacity is 56 million pine trees and half a 
million hardwoods. Campbell says that in stretching the limits of some 
beds by working them an extra year, he'll grow an extra 7 million 
pines.
    ``Right now, the demand is clearly there,'' Campbell says.
    Weyerhaeuser's Magnolia nursery planted its capacity of 60 million 
pines and 4 million hardwoods this spring.
    The State Forestry Commission's Baucum Nursery in east Pulaski 
County planted 11.25 million pines and 6 million hardwoods this year. 
Next year the nursery will increase planting to 15 million pines and 7 
million hardwoods.
    Managers at the commercial nurseries say they will push capacity 
again, and it would surprise no one to see more nurseries going into 
business or present nurseries expanding.
    Many of those responsible for the extra demand are private 
landowners, the nursery managers say.
    Bill Boeckman, manager at the Weyerhaeuser nursery, explains that 
corporate growers are usually in the practice of growing at capacity on 
their Arkansas holdings, so their need for seedlings is flat.
    ``All of the [soaring] demand that we're seeing is coming from the 
private grower,'' Boeckman says.
    All this growth and enthusiastic land management, especially among 
the independent owners, would be seriously curtailed if the proposed 
EPA regulations are implemented, Francis and Forestry Commission 
officials say.
    ``The big industrial growers have a lot more resources, and 
attorneys, to deal with these issues,'' says John Shannon, commission 
director. ``The private grower is less able to plan for the future and 
would have a harder time'' coping with the regulation process.
    Not that the corporate players don't care about the proposals as 
well.
    ``We're taking it as an extremely big deal,'' says Richard Stich, a 
wildlife biologist and environmental coordinator with The Timber 
Company-Georgia Pacific in Crossett.
    ``[The proposed rules] have the potential to really impact us, 
requiring us to get permits for just about every practice that we do,'' 
Stich says.
    Private growers would likely have to hire experts to draft 
management plans to gain permits, which could make the cost of 
harvesting smaller plantations too expensive, Stich says.
    And all those growers, both corporate and private, applying for 
permits to plant or build roads or harvest trees would surely overwhelm 
the State's regulators, Stich says.
    ``It could mean hundreds of thousands of permits, and the EPA and 
the State don't have that kind of manpower,'' Stich says. ``It would 
demand an army of folks to manage this program the way that they want 
it. The environmental agency wants to revise the Clean Water Act of 
1973 to allow the agency to require tree farmers to gain permits case 
by case before engaging in a host of activities on plantations near 
endangered streams or waterways. Livestock and poultry operations would 
also feel the effects.
    The agency says the measures would protect the quality of streams 
and waterways from runoff that can occur after lands are prepared for 
planting or after trees are harvested, especially by clearcutting.
    ``We think that the new regulations should affect [the forest 
industry]. That is a big, fat yes,'' says Tom McKinney, a leader in the 
Arkansas Sierra Club.
    The organization has teamed with other environmental groups in the 
past to study the impact of U.S. Forestry Service logging in the Ozark 
National Forest near the headwaters of the Buffalo National River.
    The study showed that damage to the forest caused by building 
logging roads and harvesting trees causes large amounts of dirt and 
debris to wash into streams, McKinney says.
    The dirt clouds the streams can kill oxygen-producing vegetation 
that needs sunlight. When the dirt settles, it smothers gravel beds 
where fish lay eggs and fills pools that dry up in summer, McKinney 
says.
    The combination can kill fish and reduce their ability to 
reproduce, McKinney says.
    ``[Forest industry's] effect is not benign, it does cause massive 
amounts of erosion, and so far, over the years, they have escaped any 
responsibility for the damage they have caused,'' McKinney says.
    When the EPA first introduced regulations under the Clean Water 
Act, it exempted the forest industry from obtaining National Pollutant 
Discharge Elimination System permits except when operations involved 
washing, sorting and storing logs.
    The industry was exempt because the EPA made a distinction between 
``point source'' and ``nonpoint source'' discharges into waterways.
    The agency required permits from those who directly discharged--as 
from a pipe or ditch--pollutants into waterways, but didn't require 
permits from industry that indirectly discharged pollutants into 
waterways--as timberland can when rain washes sediment into a stream.
    Forest industry contributes 3 percent to 9 percent of the nonpoint-
source pollution to the nation's water; the agency says.
    But the EPA stresses that the new regulations, if adopted, would 
only be employed on a case-by-case basis and would rarely require 
industry to seek the permits.
    The agency has set Jan. 20 as a deadline for public comment on the 
proposals. Several attempts to reach EPA officials during the past week 
were unsuccessful.
    Shannon says the Forestry Commission is dead set against the 
proposed regulations.
    Recent Forestry Commission surveys have shown that more than 85 
percent of those involved in the State's forestry industry are 
voluntarily following a set of ``best management practices'' adopted by 
the State after the 1973 introduction of the Clean Water Act.
    So Shannon questions why the EPA would want to interfere with a 
system that is already regulating itself.
    `'Frankly, it's pretty nutty,'' he says. ``The proposals are 
absolutely unnecessary.''
    The State forester also says that most National Pollutant Discharge 
Elimination System permits take 6 to 8 months to obtain and the wait 
could mean real trouble for a grower who needs to act quickly to 
harvest pest-damaged timber or build an emergency firebreak during a 
dry season.
    Further, though the EPA says the impact of the new regulations 
would be minimal, Shannon says he worries that there are forces in 
place that could quickly increase the impact of the proposed rules.
    Nationally, forest industry official worry that long-standing 
lawsuits filed against the EPA by numerous environmental groups will 
lead the agency to add more streams and waterways to its endangered 
list.
    In Arkansas, the forest industry fears that a lawsuit filed by the 
Sierra! Club, Arkansas Fly Fishers. the Crooked Creek Coalition, Save 
Our Streams and the Federation of Fly Fishers will force the EPA to 
increase: the number of streams identified as endangered from 52 to 
almost 200.
    ``We need to keep up with water quality standards because that's 
why Arkansas is known as the Natural State,'' says the 
environmentalists' attorney, Hank Bates of Little Rock. ``Clean 
waterways are an important factor in generating tourism.''
    Any increase in the endangered list would translate to an increase 
of growers who would be required to gain National Pollutant Discharge 
Elimination System permits, Shannon says.
    Which is anathema to Francis who is convinced the proposed 
regulations are really a plot by environmentalists to gain new power 
over the forest industry.
    Francis says he worries that National Pollutant Discharge 
Elimination System applications would be delayed by ``radical 
environmentalists'' who might protest the permit simply to prevent the 
tree farmer from harvesting his crop.
    ``This is a slick move by the anti-forestry advocates to find some 
way to stop forest management and timber harvesting,'' Francis says. 
``And it's not necessary. This business of claiming that forests are a 
point pollution source is a bunch of BS.''
    Driving back from one of his tree farms earlier this month, Francis 
waves his hands and raises his voice whenever he comes to the subject 
of environmentalists. A staunch believer in the State's best management 
practices, Francis says his farms are environmentally sound and 
responsible--something he says most forestry industry opponents don't 
realize.
    He worries that the forest industry is still paying for the sins of 
its fathers--those turn-of-the-century days when lumber companies were 
driven by ``Cut out and get out'' mentalities that denuded vast tracks 
of virgin timberland.
    ``But no one farms that way anymore,'' Francis says.
    Now the rule of thumb is to re-plant quickly and keep the land 
going. It's the only profitable way to stay in the business, he says.
    ``So people see trees coming down and they think it looks ugly and 
they don't realize the farmer is going. to plant them back,'' Francis 
says.
    ``People don't get mad when a row crop farmer harvests his land,'' 
Francis says. ``But they want to tell me I can't harvest my crop.
    ``They want to tell me what to do on my own land.''

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