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

(

PROPOSED RULE CHANGES

TO THE TMDL AND NPDES PERMIT PROGRAMS

U.S. GOVERNMENT PRINTING OFFICE

66–381 PS WASHINGTON : 2001

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

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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

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

ROBERT F. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

LINCOLN CHAFEE, Rhode Island

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

DAVE CONOVER, Staff Director

TOM SLITER, Minority Staff Director

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND DRINKING WATER

MICHAEL D. CRAPO, Idaho, Chairman

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

JOHN W. WARNER, Virginia

ROBERT F. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

HARRY REID, Nevada

FRANK R. LAUTENBERG, New Jersey

RON WYDEN, Oregon

BOB GRAHAM, Florida

BARBARA BOXER, California

(II)
(III)

CONTENTS

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 of Montana.................................................................................................... 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
Page

IV

Statements—Continued

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
Page

V

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
Page

VI

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
Page

VII

Statements—Continued

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
Page

VIII

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
(1)

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 administra-
2

tors 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
3

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
4

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
5

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:]
6

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 deci-
7

sion 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.
8

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.
9

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 offi-
10

cials. 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.
11

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
12

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.
13

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.
14

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.
15

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
16

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.
17

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:]
18

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 finan- cial 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
19

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?
20

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 watershedby-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.
21

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.
22

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 nonpoint 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 mesotheliomarelated 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
23

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
24

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?
25

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
26

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 nonpoint 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 nonpoint 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 in-
27

formation 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—nonpoint 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.
28

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 ‘‘onesize-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
29

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 topdown 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 onsitespecific 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.
30

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
31

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
32

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
33

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.
34

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.
35

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
36

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.
37

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?
38

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
39

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.
40

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
41

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.
42

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 guaran-
43

tee 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.
44

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.
45

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.
46

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 simul-
47

taneously 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.
48

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
49

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 nonpoint sources.
50

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
51

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——
52

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
53

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.
54

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
55

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 § 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.
56

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
57

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-anacre 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
58

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
59

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
60

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).
61

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.
62

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
63

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.
64

2. EPA should require the submittal of a one-part 303(d) List of water qualitylimited 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 delist 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.
65

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 qualitylimited 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 delist 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 flexi-
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bility 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
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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 strength- en 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 communitybased 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
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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.
69

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 § 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.
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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 modifica-
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tions. 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
72

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 with- in 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 imple- mentation 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’’
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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

§ 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 § 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 costshare agreements for nonpoint source TMDLs. Although § 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.
74

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
75

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.
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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 § 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

§ 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.
77

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.

Soliciting comments to ensure the protection of endangered species

EPA is proposing rules that would establish various requirements for public par- ticipation (See 40 CFR § 130.37). Among those requirements is a provision ‘‘encour- aging’’ 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

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
78

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.
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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 Statesponsored 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
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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 Stateissued 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
81

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 § 319 and § 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 § 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.
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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.
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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.
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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
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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 assess- ments 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 fi- nancing 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.
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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 pre-
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dominately 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.
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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
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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.
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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.
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AFFECTS ON URBAN GROWTH AND ECONOMIC DEVELOPMENT

NLC believes that the proposed ‘‘offsets’’ and changes to the antidegradation poli- cies 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 munici- palities 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 (in- dustrial) 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 tax-
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payers—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 dis-
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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.

charges 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 experience1 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.

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.
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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;
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• 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 incentivebased 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, incentivebased 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.
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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 oneon-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.
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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
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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 regula- tion 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 dis- approves 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:
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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. Assum- ing (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 inad- equate 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
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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.
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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,
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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 con- cerning 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 com- ments 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 man- agement, 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, pro- tection 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 water-
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shed 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.
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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).
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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.
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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 environ- mental 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.
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• 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.
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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 (§ 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
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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 (§ 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 ‘‘pre- ferred 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.
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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 uti- lize 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 (§ 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 meth- odologies 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 (§ 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 implemen-
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tation 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 (§ 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.
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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 (§ 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 (§ 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 expecta-
113

tions, given the heavy TMDL workload and short deadlines, would not enable States

to achieve that objective.

Public Petition Process (§ 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 (§ 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 (§ 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 (§ 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
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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 per- mit 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 (§ 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 (§ 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 per-
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mit 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) r.savage@asiwpca.org 202–898–0905 or Linda Eichmiller (ASIWPCA)

l.eichmiller@asiwpca.org; Robbie Roberts (ECOS) rroberts@sso.org 202–624–3660 or

Tom Curtis (ECOS) tcurtis@sso.org; Tony MacDonald (CSO) tmacd@sso.org 202–

508–3860 or Kerry Kehoe (CSO) cso.rkk@sso.org>.

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

Simpler Moderate Difficulty Complex Total

Percent of TMDLs

(Number).

20–30 percent

(8,000–12,000).

60–70 percent (24,000–

28,000).

10 percent (4,000) .. 100 percent (40,000)
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Mid-Range Estimate of Costs to Develop 40,000 TMDLS Over 15 years—Continued

Simpler Moderate Difficulty Complex Total

Cost Per TMDL ......... $50,000-$200,000 ... $300,000-$400,000

$600,000-$1,000,000.

Total ................ $400,000,000-

$2,400,000,000.

$7,200,000,000-

$11,200,000,000.

$2,400,000,000-

$4,000,000,000.

$10,000,000-

$17,600,000,000

Annual Average (over

15 years).

.................................. .............................................. .................................. $670,000,000-

$1,170,000,000

Average per State

Annually.

.................................. .............................................. .................................. $13,400,000–

423,400,000

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

Funding For All

State Water

Quality Management [In millions

of dollars]

Minimum Amount

Need Annually

Considering

TMDL Needs [In

millions of

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 Incremental Costs Allocation Per State

Listing: State costs* ............................. $230,000.00 ............................................ $4,600.00

TMDL Development and Content: State

Cost **.

10.1–23.8 Million .................................... 202,000–476,000

USEPA burden for the above*** ........... $18,000 (450 hours) ............................... 360.00 (9 hours)

Offset Requirements .............................. 11.54–42.28 Million ................................ 230,800–845.600

Designation of NPS as Point Sources in

NPDES Delegated States****.

5.67–22.96 Million .................................. 138,300–560,000

Total .................................................. 27.56–89.28 Million ................................ 576,060–1,886,560

* 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.
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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]
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[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
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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 inves- tigation 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 per- ceived 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 stand- point. 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 respon- sible 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 effi- cient 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 pri- orities, Unified Watershed Assessment priorities, Clean Water Act § 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
120

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 § 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]
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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 wa- tershed 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 EPAapproved 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
122

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 pro- tection 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 . . .
123

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
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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 ex- clusion 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, mak- ing 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’’ designa-
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tions; 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).

Proposed Provision Annualized Cost

($ Million)

No. of Entities Affected

Annually

Designating Silvicultural Operations Under NPDES:.

Cost for the silviculture industry .............................. 3.45—12.93 ..............................................

Administrative costs to Federal and State governments.0.27–0.28 ..................................................

Subtotal ............................................................ 3.72—13.22 .............................................. 613–1,225

Annualized compliance costs for small logging

firms.

0.36 percent to 0.67 percent of their annual revenues.368–735

Annualized compliance costs for small entity timber owners.0.27–0.50 percent of their timber revenues.<18,000
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State Foresters believe the above estimates are far too low and the proposed

NPDES rule will affect a far greater number of entities than the EPA has envisioned.

First and foremost, the authors of the cost analysis admit the final reported costs

are vague, misleading and uncertain. In their proposal, EPA states: ‘‘This paper presents some rather uncertain estimates of how often the proposed designation authority might be invoked, and, if so, the costs that will likely ensue’’ (p. 52,

Environomics, 1999, emphasis added). This analysis must then be assumed to represent a low end-cost estimate. We believe it would be more appropriate to include

a high-end estimate to better prepare potentially affected entities. We believe such

a high-end estimate is justified by the fact that EPA will likely be pressured,

through additional litigation, to expand their use of regulatory authority under

NPDES if the proposed rules are implemented. The final result will be significantly

greater costs than anticipated by the Environomics report.

Reinforcing our belief that EPA cost estimates are far too low, the authors utilize

ownership and business data that is seriously out-of-date. The 1978 data source

quoted by the authors indicate only 7.8 million ownership units holding 333.1 million acres of private forest land in the U.S. That same survey was updated in 1994.

The 1978 data source underestimates the number of private forest landowners by

2.1 million, and the number of acres owned by these landowners by 60 million acres

(National Research Council, 1998). Furthermore, the estimated number of affected

logging entities is underestimated nearly three-fold. While the authors report only

14,278 logging entities nationwide, that number is closer to 37,000 according to the

Forest Resources Association (formerly the American Pulpwood Association). These

numbers will substantially raise the estimated costs of the proposed NPDES rule.

Even if we assume, however, that the Environomics report is accurate, we would

be forced to question the need for the rule if the number of effected landowners and

forest management operations that would be impacted is so small. Their cumulative

impact on water quality would be nearly immeasurable.

Again, we believe the EPA’s cost estimates for the proposed NPDES rule are far

too low and the true cost impacts will greatly outweigh any potential benefits, especially when considering the small amount of sediment pollution silviculture contributes to the NPS water pollution problem. The proposed NPDES rule is simply another disincentive for landowners to actively engage in forest management. We believe that the higher costs associated with these rules raises the question of an unfunded mandate which would be well above the $100 million threshold. This question should be revisited.

CONCLUSION

On October 22, 1999, USDA Undersecretary for Natural Resources and Environment sent a letter addressed to EPA Administrator Carol Browner on the proposed

revisions to the Total Maximum Daily Load and NPDES systems. This commentary

provides a very telling and accurate story of the affects the proposed rules would

have. From the letter, ‘‘In general, we (USDA) feel that if the proposed rules are

implemented they will likely cause disruption to existing NPS control programs that

have proven to be effective and will unnecessary divert scarce resources to a topdown, process oriented approach that may not work for NPS pollution control.’’ We

could not agree more.

The fact is forest management is dispersed in both space and time. State Foresters believe that (1) nonpoint source pollution from forestry activities are usually

a result of extreme weather or operational malfeasance; (2) pollution can best be

controlled through prevention; and (3) forest management has the least impact of

land-use alternatives. Therefore, the EPA should retain its current NPS treatment

of silvicultural practices. The idea that a tracking, permitting and monitoring system for nonpoint sources, let alone forestry, could be established to pinpoint offenders in a timely manner is simply illusory. If anything, we feel that other land uses

should be brought up to the level of protection evident on forest lands, particularly

when taking into account their relative contributions to the NPS pollution problem.

For these reasons, NASF recommends that the EPA retract the proposed NPDES

and TMDL rules. We would encourage the agency to seriously revisit the NPS pollution issue to determine what is needed to further improve the quality of water coming off of our forested landscapes; already considered to be the source of the cleanest

waters in the United States (USDA Forest Service, 2000). If the EPA is simply looking for reasonable assurances that silviculture does not significantly contribute to

water pollution, the answer does not lie in Federal regulation. We suggest the answer lies in stronger commitments to BMP implementation at all levels of government within a voluntary and incentive-based context that prevent water quality
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problems before they happen. The Federal Government has a vested interest in this

public good which justifies boosting Federal resources and investments that will be

needed to see such commitments through.

REFERENCES

Environomics, 1999. Analysis of the Incremental Cost of Proposed Revisions to the

EPA NPDES Permit and Water Quality Standards Rules. Environomics, Inc.

EPA, 1996. National Water Quality Inventory [305(b) reports]. Environmental

Protection Agency.

Ice, George, and Shepard, Jim, 1999. Silviculture and Water Quality: A Quarter

Century of Clean Water Act Progress. National Center for Air & Stream Improvement (NCASI).

National Research Council, 1998. Forested Landscapes in Perspective: Prospects

and Opportunities for Sustainable Management of America’s Non-Federal Forests.

Committee on Prospects and Opportunities for Sustainable Management of America’s Non-Federal Forests, Board of Agriculture, National Research Council.

Olszewski, Robert, 1999. Testimony before the House Agriculture Subcommittee

on Department Operations, Oversight, Nutrition, and Forestry. October 28, 1999.

Stuart, Gordon W., 1996. The National Association of State Foresters 1996

Progress Report, State Nonpoint Source Pollution Control Programs for Silviculture.

National Association of State Foresters.

USDA Forest Service, 2000. Water & the Forest Service. FS–660.

ATTACHMENT—NASF WATERSHED FORESTRY INITIATIVE

WATERSHED FORESTRY INITIATIVE (USDA FOREST SERVICE—STATE & PRIVATE

FORESTRY—COOPERATIVE FORESTRY)

Background

Forests are essential to clean water our most precious resource. Well managed forests absorb rainfall, filter pollutants from air and water, and recharge underground

water supplies. They protect streams and wetlands and reduce flooding—keeping

our environment healthy. Forests provide critical habitat for fish, wildlife and rare

plants. Many communities rely on their forests to support the local economy and improve the quality of their everyday lives. Clearly an investment in trees and forests

is an investment in clean water, clean air, and clean communities.

Issues Facing Our Watershed Forests

Non-point source pollution on private forestlands has been addressed primarily

through State Forestry Agencies in cooperation with the USDA Forest Service. Nationwide, nearly 70 percent of our forestlands are privately owned. In the Eastern

US, that figure rises to over 90 percent. These forests produce 2⁄3 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:
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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.
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Budget

Program Actions

Budget

(In 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 gov- ernments 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 Amer- ican 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
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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 § 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 TMDLbased 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 longstanding and important environmental problems.
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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?
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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
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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 qualitybased 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 watershedbased 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 fur-
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ther.’’ 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.
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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.
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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
137

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, costeffective ‘‘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
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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 WatershedBased 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 be-
139

lieve 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 cal- culate 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 sys- tem 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

mcharles@asce.org.

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
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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 farreaching 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.
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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
142

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 deci-
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sions 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 nonpoint 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 nonpoint source control.
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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,
145

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.

(147)

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.
148

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.
149

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.
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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 nonpoint 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.
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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.
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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 nonelected 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.
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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.
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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
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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.
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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 VAHUD-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 caseby-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.
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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 timesensitive 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 ful-
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fill 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
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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 EPAfunded 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
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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.
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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.
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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 sitespecific.

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
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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.
164

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
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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.
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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 costwise. 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.
167

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
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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 VirginiaRappahannock 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
169

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 nontraditional 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 stakeholderbased 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.
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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.
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[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 avail-
172

able. 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.
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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
174

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.
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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.
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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 sitespecific.

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 in-
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stall 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
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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 reduc-
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tion 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
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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 threequarters 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
181

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
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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.
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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.
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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
185

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 de-
186

cision 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.
187

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.
188

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 trib- ute 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
189

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
190

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.
191

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 reg- ulation 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 Serv- ices (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
192

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
193

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.
194

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. Gov- ernment 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 des- ignate 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
195

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 wild- life 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.
196

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.
197

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.
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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.
199

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: ow-docket@epa.gov <ow-docket@epa.gov>

Cc: Carl DeLoi <deloi.carl@epamail.epa.gov>

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
200

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 oper-
201

ations 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 ‘‘nonsource’’ 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.
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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 highlevel 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 si-
203

phoned 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 nonpoint 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.
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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
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my way to encourage other non-industrial forestland owners to adopt a similar highlevel 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.
206

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
207

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.
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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 oper- ations 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 observ-
209

ing 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 longrange 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 nonprofit 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.
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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 nonpoint 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
211

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
212

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?
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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.
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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.
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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.
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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
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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.
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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
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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.
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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 pro-
227

gram 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
228

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
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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.
230

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.
231

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?
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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.
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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,
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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
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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
236

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
237

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.
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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
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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?
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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.
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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 Statelevel 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
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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—respon-
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sible 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 nonpoint 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 nonpoint 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 nonpoint 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.
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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 pro-
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posing 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 Inde- pendent 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 land- owner 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 imple- menting 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.
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1Water Quality: Key and State Decisions Limited by Inconsistent and Incomplete Data (GAO/

RCED–00–54, March 15, 2000)

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 IS- SUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, GENERAL

ACCOUNTING OFFICE

Mr. Chairman and members of the subcommittee: I am pleased to be here to dis- cuss 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 landbased 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
247

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.

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. 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.

States report to EPA on the condition of their waters via two primary mecha- nisms. 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
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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 wa- ters 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
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3 Current and proposed EPA regulations require that States develop TMDLs for waters polluted by non-point sources.

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.

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 di-
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4See TMDL Development Cost Estimates: Case Studies of 14 TMDLs, USEPA (1996). One effort did not provide separate cost data on additional data collection conducted. 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.

rectly 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. 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.

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 mak- ing 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
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7Watershed 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.

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.

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
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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
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1For additional background, see CRS Report 97–831, ‘‘Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants.’’ 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. 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.

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

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, com- pared 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 PROPOSALS2

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, terri- tories, 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

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 pollut-
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4The 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. 5The 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). 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)

ant 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 States4 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.

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.

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 technologybased controls is expected to result in attainment of water quality standards by the

next listing cycle.
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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 re- quire 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 regu- latory 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.
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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.

• 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.

Designation of additional sources of pollutants as subject to the NPDES programanimal 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
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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. 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.’’

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. EPA proposes to modify regulations to allow the Agency to designate animal feed- ing 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 des- ignated as concentrated animal feeding operations (CAFOs), since CAFOs already

are subject to NPDES requirements.9 It also would apply to aquatic animal produc- tion 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).

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 caseby-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 es-
258

tablishes 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.
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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
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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 seam-
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less 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 inte- gration 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 re- markable, 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
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1Maryland 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. 2The Bay Agreement signatories include EPA, the States of Virginia, Maryland, Pennsylvania, the District of Columbia, and the Chesapeake Bay Commission.

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 inconsist- ent 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 Vir- ginia, 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.

In response to these concerns, the Chesapeake Bay Agreement signatories2 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.

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
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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 Discre- tion, 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 con- trol 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
264

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
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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 sig- nificant 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 jcanaday@alexsan.com or Cy Jones (MAMWA) at 301–206–8831

or email cjones1@wssc.dst.md.us.

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 nonpoint 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.
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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
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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 metalsenriched 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
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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 water- shed 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 spe- cific 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 dead-
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1Widespread 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 § 303(d), 33 U.S.C. § 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). 2Letter 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.

line 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 TMDLs1 and prepared extensive comments on EPA’s proposed TMDL rule.2

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 vol-
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3For 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. 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. 5See, e.g., CWA Secs. 302, 303(d), 303(c), 402, 304(l). 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).

8 40 CFR Sec. 122.4(a).

9 40 CFR Sec. 122.4(d).

10 40 CFR Sec. 122.44(d).

untary 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. 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 qualitybased 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

The water quality-based approach of the Clean Water Act creates explicit restric- tions 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

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 sec-
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11 40 CFR Sec. 122.44(d)(1). 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). 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. 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.

tions 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

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 instream 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. 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

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 ex- tremely 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.

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
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17State 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.

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

Problems arise from EPA’s having restricted its analysis of point source dis- charges 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 sciencebased 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 imple-
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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. 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.

mented 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 taxand 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.

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.

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
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21The 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 up- stream 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.

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. 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 Wild-
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23South Steens Water Quality Management Plan, dated June 22, 1998, and Total Maximum

Daily Load, Public Notice Dated: July 10, 1998.

life 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 Im- plementation 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. The reasons are obvious. If a TMDL is reviewed by EPA prior to the State’s hav- ing 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.
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24 CWA Sec. 303(d)(1)(C). 25 ‘‘Percent Impaired Waters in 1998,’’ a colored map prepared by EPA in 1999. 26When 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.

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.

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.

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 tech-
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27NRDC 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

nology-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 technologybased approach27 as has been the case with TMDL program.28

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
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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 nonpoint 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
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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
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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 ap- proaches, 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-theground 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 ac-
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tivities 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
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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 onthe-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
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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 antibacksliding 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.
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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
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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.
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A second key concern is that EPA has not adequately accounted for the costs asso- ciated 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
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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 wa-
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ters 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 § 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.
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CONCERNS WITH EPA’s TMDL PROPOSAL

While supportive of some of EPA’s proposed changes, AMSA does have major con- cerns 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

§ 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 § 305(b) rather than § 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 § 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

§ 305(b) rather than § 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 § 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 § 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 § 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, longrange 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
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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 Govern- ment, 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 qualitybased 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, with-
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out 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 vir- tually 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
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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 estab- lishing 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 fos- ters 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 Envi- ronmental 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 sig- nificantly 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 spe-
293

cies. 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,
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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,
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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.
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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 op-
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erating 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.
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1 NGA’s Policy on Water Resource Management, Adopted Winter Meeting 2000; See

www.nga.org

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
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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.

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
300

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
301

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
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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. Stew- art, 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.
303

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 Wa-
304

tershed 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.
305

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
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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 Fed- eral 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 pro- fessionals 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.
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• 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:

• reduced 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 nonindustrial 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.
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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
309

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.
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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 Protec- tion 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
311

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.
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1 33 U.S.C. § 1362(14).

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

Significant misunderstanding exists about the scope of EPA’s silviculture pro- posal. 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

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 appro- priate 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.
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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
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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 environ- mental 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 argu- ably 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
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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 postharvest 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.

§ 1600 et seq. BLM manages its land under the Federal Land Policy and Management Act. 43 U.S.C. § 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 Wa- tersheds: 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
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2 33 U.S.C. § 1362(14).

3 33 U.S.C. 1251(a).

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 effec- tiveness 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

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.

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
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4See 33 U.S.C. 1362(14).

5 33 U.S.C. 1344(f)(A).

6 33 U.S.C. 1344(f)(E).

7 33 U.S.C. 1362(14).

(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

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)).

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 nonpoint sources is efficient and effective. The TMDL process will accomplish little if

it does not consider pollution from non-point sources.
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8 33 U.S.C. 1313(d)(1)(A).

9 H.R. Rep. No. 92–911, at 105 (1972).

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). 11 33 U.S.C. 1251(a).

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 nonpoint sources alone. Excluding these waters from the TMDL program would simply

ignore the problem rather than provide an effective means of restoring water quality.

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:

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

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 PacificAtlantic 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.
319

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.
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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 na- tion’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
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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
322

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, Or-
323

egon 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
324

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.
325

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 caseby-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.
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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
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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;
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• 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 ac- complishments. 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
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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 re- sponsibility 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 envi- ronmental 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 cat-
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tle 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 nonindustrial 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 longterm 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.
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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 appre- ciation 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 moun-
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tains 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
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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
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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.
335

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.
336

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 pollu- tion, 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
337

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 shutdown 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, topdown, 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.
338

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?
339

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.
340

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?
341

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 land-
342

scape. 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 21⁄2 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.
343

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 31⁄2 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 south-
344

eastern 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 state-
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wide 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 na-
346

tional 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
347

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
348

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?
349

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.
350

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.
351

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.
352

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.
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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.
354

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.
355

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
356

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 impair- ment 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 onesize-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
357

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, Sen-
358

ator, 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.’’
359

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 sitespecific 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 ques-
360

tions, 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.
361

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.]
362

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
363

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.
364

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 701⁄2

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.
365

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
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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.
367

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 Conserva- tion 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
368

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-fitsall 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 appro-
369

priate. 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.
370

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
371

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
372

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.
373

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 farreaching 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 pro-
374

tect 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.
375

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.
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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
377

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
378

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.
379

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.
380

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
381

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
382

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-fitall.

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.
383

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, membersupported 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
384

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 addi-
385

tional 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.
386

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.
387

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
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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,
389

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
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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
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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 AFOCAFO.

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
392

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-ch-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
393

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
394

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
395

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
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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.’’
397

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
398

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
399

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.
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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 down-
401

stream 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
402

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-er-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 solu-
403

tion 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
404

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.
405

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 legisla- tion 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 re- convene 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.
406

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
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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 Ex- pected 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 devel- opment for impaired waters, than in the original proposal. • ‘‘Threatened-waters’’ was dropped as a category. This was an ambiguous cat- egory 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
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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 pro- gram 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 Depart-
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ment 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 implemen- tation 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 imple- mentation of the Clean Water Act, and is not supported by statutory authority. 2. The proposal ignores the relatively minor contribution made by forest manage- ment 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 prop- erty 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?
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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 En- vironmental 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.
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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 bil-
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lion. 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).
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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 pol- lution 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 run- off 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 op- posed 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
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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.
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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 con-
416

trols 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.
417

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 pre-
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pared 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 Na- tion’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 Advi- sory 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 ‘‘off- sets’’ 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
419

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
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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, watershedbased 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.
421

Functional equivalency could also be determine by compliance with another simi- lar 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 pro- gram. 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
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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 im-
423

pact 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 for- estry 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.
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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:
425

• 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 pro- posed 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 under- funded. 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
426

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.
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• 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.
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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
429

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.
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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
431

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, con-
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tentious 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
433

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 implement- ing the TMDL program. 3. The role of EPA on interstate waters:

• Section 130.36 of the proposed rule lists circumstances in which EPA may es- tablish 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
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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 re- store 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 per-
435

mits 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.
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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.
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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
438

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 posi- tive, 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 Statematching 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 longterm nonpoint source water quality or forest sustainability standpoint, Mr. Chair-
439

man, 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.
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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.
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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 cat-
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egory 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.
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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. § 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), § 301(b)(1)(C), water quality suitable for fish, wildlife, and recreation was to be attained over 16 years ago

(by July 1, 1983), § 101(a)(2), and discharges were to be eliminated over 14 years

ago (by 1985). § 101(a)(1).

Central to achievement of these timelines, § 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
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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.
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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.
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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 regula- tion 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 AFOCAFO 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
447

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 conclu- sion 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.
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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
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supply of drinking water. We strongly support effective clean water pollution prevention programs. AWWA supports the Total Maximum Daily Load (TMDL) concept with the inclu- sion 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 water- shed 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 au-
450

thorized 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 con- sidered 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,
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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.
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Under this theory, if the National Forest Systems are exempt, why not the Na- tional 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.
453

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 list- ing 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
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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 for-
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esters 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
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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 Com- ment 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
457

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.

(459)

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
460

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.
461

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 re-
462

ceived 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.
463

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.
464

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 com- ments, 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 Environ- mental 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.
465

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.
466

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.
467

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 Hamp- shire, 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 prac-
468

tice 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.
469

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 sec-
470

tor. 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 prac-
471

tices 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
472

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
473

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.
474

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
475

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
476

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.
477

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.
478

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.
479

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
480

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.
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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.
482

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
483

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 in- cluded in the hearing record.

Economic Analysis

Several Members of Congress have suggested that EPA did not conduct an ade- quate 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 de- cide 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
484

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.
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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
486

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 oper- ations—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 re- quired 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
487

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.
488

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
489

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 de-
490

tails 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 under- funded. 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
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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 Manage-
492

ment, 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 prepara- tion; 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
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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 sec-
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tion 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.
495

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 blueribbon, 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 Sec- retary 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.
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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 Na- tional 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
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1 EPA, Analysis of the Incremental Cost of the Proposed Revisions to the TMDL Program Regulations at 9, 32 (Dec. 21, 1998). 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).

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 technologybased 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.

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

With this background, CASA appreciates the opportunity to provide Congress

with the following comments:
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3See 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).

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

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 costeffective 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 pollut- ants 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
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4See 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 pollutContinued

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
500

ants.’’); 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.’’) 5See 33 U.S.C. 1288(b)(2)(C). 6See 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). 7See Arkansas v. Oklahoma, 503 U.S. 91, 107–108 (1992).

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. 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 ad- dressing 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 nec- essary 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. 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.

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 shortterm problem and I would like to submit this language for the record as part of this

testimony.

Encourage an economic analysis component within water quality standards adoption and revision. In addition to urging EPA to uphold the triennial review process
501

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.
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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 unjustifi-
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able 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 (11⁄2:1) 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.
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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.
505

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 per- mitted.

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.
506

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 nonpoint source pollution, therefore silviculture, agriculture, and other types of nonpoint 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.
507

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 Romanowsky, 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 incentivebased, 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
508

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, incentivebased 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
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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 costeffective. 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 im- plement 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 reclassi- fication 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
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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 Qual- ity 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 re- viewed 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
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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

§ 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
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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-theground 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?

§ 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?

§ 130.2(h)—Total Maximum Daily Load

The definition of TMDL inappropriately expands the language of the CWA and

the current regulatory definition.

• § 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
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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.

§ 130.2(n)—Threatened Waterbody

• Threatened waterbodies are not considered in the CWA. § 303(d)(1)(A) specifically States, ‘‘. . . effluent limitations required . . . not stringent enough to implement any water quality standard applicable to such waters.’’ (CWA § 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 40CFR§ 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

§ 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.

§ 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
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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-mathemati- cal’’ 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?
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COMMENTS ON 40 CFR PART 130

§ 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.

§ 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?

§ 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,
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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?

§ 130.27(a)

• The proposed regulation specifies what the § 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’’ § 130.1(n) a

threatened waterbody ‘‘currently attains water quality standards . . .’’ (Proposed

40CFR§ 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?

§ 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 § 303(d) priorities. The CWA clearly

specifies that ‘‘The State shall establish a priority ranking for such waters . . .’’

(CWA § 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 § 303(d)(2)) Congress clearly intended EPA to either approve or disapprove the § 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.

§ 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
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that ‘‘The State shall establish a priority ranking . . .’’ (CWA § 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.

§ 130.28

Specifying how States are to establish priorities, ‘‘How do you prioritize the

waterbodies on Part 1 of your list?’’ (Proposed 40 CFR § 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

§ 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.

§ 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?
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• 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? • § 130.33(b)(6) clarifies that the load allocations may, if possible, contain alloca- tions 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
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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,
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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.

§ 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?
521

• 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 silvicul- tural 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
522

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.
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1See ‘‘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.

MAJOR PROBLEMS WITH S. 2417

While provisions this bill authorizing more money for State pollution control pro- grams 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 di- rective 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. 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 Na- tional 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
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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 sci- entific 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?
(525)

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 con-
526

cerned 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 spe-
527

cial 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 for-
528

estry 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-fitsall, 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
529

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
530

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
531

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
532

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 commonsense 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 cosponsoring, 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 commonsense bill, and I believe its passage to be critical to the continued

protection and enhancement of the environment and to the eco-
533

nomic 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 ques-
534

tions 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?
535

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
536

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-tothe-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 USDAEPA 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
537

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 back-
538

ground 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
539

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
540

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
541

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
542

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 re-
543

gion, 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
544

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
545

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.
546

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
547

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 in-
548

cluded 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.]
549

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 to-
550

night, 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 tim-
551

ber 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
552

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
553

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
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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 re-
555

sources 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.
556

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 con-
557

fined 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 longstanding 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
558

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?
559

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-andcontrol-oriented, centrally located power structure with control over

an area of the clean water actions in this country that had never
560

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.
561

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?
562

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.
563

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,
564

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
565

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.]
566

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
567

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
568

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, NonIndustrial, 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
569

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,
570

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
571

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 mid1980’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
572

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.
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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 re- convene 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
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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 or- ganizations 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:
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• 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;
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• 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.
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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 regula-
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tions 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
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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
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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 wa- ters 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
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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
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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.
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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 nonindustrial 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
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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 actu- ally 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.
585

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,
586

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
587

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.
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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.
589

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.
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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
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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
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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.
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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
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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.’’
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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, get- ting 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 nurs- eries’ 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 hard- woods. 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.
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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.
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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.’’

Æ