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Summary of Clean Water Act Hearings (8-04-00)



House Committee on Agriculture
June 28, 2000

Review of H.R. 4502, the Water Pollution Program Improvement Act of 2000 and the EPA's proposed Total Maximum Daily Load rules on agriculture and silviculture.

The Bottom Line
Many farm and forestry groups bitterly oppose the new TMDL program as too expensive and not backed by science.  In response, H.R. 4502 was introduced on May 19th that will require the EPA to make arrangements with the National Academy of Sciences to conduct a study on the: (1) scientific basis underlying the development and implementation of TMDLs for pollutants in waters; (2) costs of implementing measures to comply with such loads; and (3) availability of alternative programs or mechanisms to reduce the discharge of pollutants from point sources and nonpoint source pollution to achieve water quality standards.  This hearing focused on the history and process involved in the TMDL program rulemaking, the science behind the development and implementation of the program, its costs, and its potential effects on agriculture, forestry, and the states.

Members Present
Larry Combest (R-TX), Chair Charles Stenholm (D-TX), Ranking Member
Tim Holden (D-PA)
Marion Berry (D-AR)

Opening Statements
Chairman Combest began the hearing expressing his concern for the revised TMDL ruling by the EPA on three fundamental issues: 1) General Accounting Office's (GAO) report on substantial uncertainty by the EPA in reflecting program costs, 2) inadequate science, and 3) unfair meetings with small interest groups in rulemaking.  All members present voiced the same concern and supported H.R. 4502.  They asserted that the regulations are ill-conceived and would impose unfair costs on farms and businesses.

Panel*
Mr. James Lyons, Under Secretary, Natural Resources and Environment, U.S. Department of Agriculture
Mr. J. Charles Fox, Assistant Administrator for Water, U.S. Environmental Protection Agency
Mr. Peter F. Guerrero, Director, Environmental Protection Issues, U.S. General Accounting Office 
Mr. Steve Moyer, Trout Unlimited, Arlington, VA
Mr. John Barrett, cotton producer, Edroy, TX 
Mr. George Ice, principal scientist, National Council for Air and Stream Improvement, Corvallis, or, on behalf of Society of American Foresters
Mr. Derek Winstanley, chief, Illinois State Water Survey, Champaign, IL 
*click on name for full written testimony

Jim Lyons stated that he hopes foresters and farmers can accept responsibility for nonpoint source impairment of rivers and lakes.  Much rhetoric has been produced that seeks to undermine the TMDL rule rather than improve it.  Lyons asserted that instead of a further polarization of difficult environmental quality issues, efforts should be made to work together towards the common goal of fishable and swimmable waters in a rational, balanced, and science-based way.  Farmers, ranchers, and foresters have been working for years to reduce the effects of their operations on water quality.  The 1985, 1990, and 1996 Farm Bills have helped these groups by use of conservation tools.  The USDA's efforts in outreach, education, and technical assistance to communities will play an important role to improve water quality.  In order to do this, Lyons continued, the USDA has and is currently working diligently with the EPA to produce fair, clear, and certain TMDL rules.  Additionally, to help landowners adequately address TMDLs for success, adequate funding for USDA programs such as the Environmental Quality Incentives Program, the Conservation Reserve Program, the Wetlands Reserve Program, and the new Conservation Security Program is fundamental.

Charles Fox stated that tremendous progress has been made in the past 28 years in improving water quality by focusing on point sources.  But almost 40% of the nation's waters assessed by states still do not meet water quality goals.  Today, some of the most obvious water pollution problems have been addressed and in order to restore the health of those waters that remain polluted, a complement to existing programs with a more focused and specific approach to identifying and restoring waters is needed.  Such foresight was written into the Clean Water Act (CWA) in 1972 in section 303(d), by the name of Total Maximum Daily Load (TMDL).  The TMDL program was designed to act as a safety net to catch water bodies that were not protected or restored by the implementation of the range of general, broadly applicable, pollution control programs in the CWA.  However, many have complained that the TMDL program is more of the same top-down, command-and-control, one-size-fits-all approach to environmental protection.  The TMDL program offers a dramatically new approach to clean water programs that: focuses attention on pollution sources in proven problem areas, rather than all sources; is managed by the states rather than the EPA; is designed to attain water quality goals that are set by the state and uses measures that are tailored to fit each specific waterbody, rather than imposing nation-wide requirements; and identifies needed pollution reductions based on input from the grassroots, watershed level, rather than at a single, national, regulatory level.  The revised TMDL rules, based on the over 34,000 carefully reviewed public comments, will allow states greater flexibility in managing polluted waters and will streamline the regulatory framework for more positive and cost-effective results.  He emphasized that because TMDL rule revisions have been ongoing for many years now with tremendous public input, that H.R. 4502, calling for the delay in finalizing TMDL revisions, is unnecessary and is strongly opposed by the Administration.

Peter Guerrero provided testimony regarding the GAO's report, requested by the House Committee on Transportation and Infrastructure, on the reasonableness of EPA's economic analyses for the proposed TMDL regulations and whether EPA's determinations under the Unfunded Mandates Reform Act and the Regulatory Flexibility Act were adequately supported.  The GAO found that because the EPA took into account a number of assumptions, their cost estimates are subject to substantial uncertainty.  Such assumptions being that states are already in full compliance with current regulations and that water quality data collected by states to identify the number of waters not meeting standards is complete, consistent, and up-to-date.  Therefore, it would have been appropriate for the EPA to assess the effect of different assumptions on the agency's cost estimates, which would likely have produced a range of possible costs exceeding those included in its analyses.  If costs exceeded $100 million, this would make the rule subject to a more detailed analyses of costs, benefits, and alternatives under the 1995 Unfunded Mandates Reform Act.  However, the GAO did find that under case law, EPA correctly determined that its proposed revisions to the TMDL rule would not directly regulate small entities; thus, deeming an additional analyses under the Regulatory Flexibility Act unnecessary.

Steve Moyer spoke of Trout Unlimited's opposition to the 18-month TMDL delay provision in H.R. 4502 and the rider included in the House's VA/HUD appropriations bill for FY 2001, which also funds EPA.  He refutes two specific justifications that H.R. 4502 provides 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.  He continued, because TMDL requirements were included in the CWA in 1972, there is nothing new about any burdens imposed.  And because the courts have begun to get involved in forcing states to implement TMDLs, the EPA correctly determined that a single set of TMDL rules, implemented fairly by each state is better than a mishmash of court-ordered programs.  Also, the TMDL process is intrinsically adaptive to new data and that more and better data is not needed to start on TMDLs, further delay as proposed in H.R. 4502 will only create a back-slide in water quality.  Improvements in data collection and analysis of water quality have substantially increased and will continue to do so.  Because section 303(d) TMDL lists are revised every four years, states are allowed to use the latest in technology and science to determine whether a certain waterbody meets given standards.

John Barret, in 1996, was appointed by the Administrator of the EPA to serve on the Federal Advisory Committee on TMDLs as a representative of agriculture.  At the hearing, he spoke in support of H.R. 4502 so that further study of the TMDL method can be employed in order to achieve a workable approach to protecting water quality, to avoid undermining current state nonpoint source programs, and to avoid imposing large costs on states and landowners.  He stated that EPA's proposed regulations are contrary to congressional intent, set unattainable standards, are impractical, do not adequately address data issues, and allow EPA the unjustifiable authority to designate nonpoint sources as point sources.  He believes that the only solution to water quality problems is at the bottom-up, watershed level rather than the command-and-control approach as framed in the TMDL program.

George Ice expressed concern over the EPA's proposal to reclassify forestry as a point source because of its substantial contribution to the number of waterbodies identified by states as impaired.  He stated that the most effective means for controlling nonpoint source pollution from silvicultural activities is by designing and applying preventive and restorative watershed management practices and not through regulatory permitting.  He mentioned that one of the strengths of the nonpoint source pollution control efforts under the CWA has been the utilization of existing state infrastructure to support silvicultural nonpoint source pollution reduction programs.  Education and funding are considered to be critical components of efforts to improve nonpoint source reduction programs and achieve water quality standards.

Derek Winstanley spoke of his background in investigating historical trends in nitrogen concentrations in the Illinois, Mississippi, and Ohio Rivers and its implications on human and environmental health in regard to the hypoxic zone in the Gulf of Mexico.  The basis of his testimony was to relate his sagacity on scientific data and analyses to establishing sound policy, regulations, and resource management strategies.  He stated that it has been his experience that adequate scientific data is oftentimes available but frequently ignored by policy-makers.  He also specified that it is essential to design and put in place a suitable monitoring network to evaluate the status and trends of water quality and quantity in the nation's rivers and streams in order to provide an improved scientific basis for addressing water quality concerns.

-N.M.

House Committee on Transportation and Infrastructure Subcommittee on Oversight, Investigations, and Emergency Management
July 27, 2000

Oversight of Total Maximum Daily Loads Initiatives.

The Bottom Line
This hearing was held in response to significant concerns expressed regarding the promulgation of EPA's final TMDL rule.  Specifically, the hearing was intended to address recent legislative proposals, H.R. 3625 and H.R. 4922.  Aside from Rep. Jay Dickey's criticism of the rule and his reference to the two bills calling for the exclusion of agriculture and forestry discharge and for further study and review, this hearing produced very little evidence to provoke any more controversy.  Charles Fox asserted that the new TMDL regulations substantially improve and strengthen the current regulations, offering a balanced, common sense approach to fixing water pollution problems that leaves management of the program where congress intended, in the hands of states, with support and backup from the EPA.

Members Present
Tillie Fowler (R-FL), Chair
Lee Terry (R-NE)
Bud Shuster (R-PA)
Sherwood Boehlert (R-NY)
Robert Borski (D-PA)

Opening Statements
All members agreed that something needs to be done to clean the nation's waters.  But with so much opposition from such disparate groups, ranging from the National Governor's Association to the Earthjustice Legal Defense Fund, they stated that the TMDL program should be shelved until more agreement can be reached.

Panel 1
Rep. Jay Dickey (R-AR)

Representative Dickey testified that many Arkansas citizens were overwhelmingly discontent with the EPA's TMDL rules, mentioning several townhall meetings that drew thousands of attendees.  Local property owners fear that their property rights may be unduly infringed upon and feel that they have and can continue to protect water quality adequately through voluntary best management practices.  He asserted that the TMDL program was obviously being dictated by pencil pushing bureaucrats who had never set foot on the farms or forests of those who would needlessly be regulated.  He cited a report by the Society of American Foresters that found that of 1,040 waterbodies EPA determined to be impaired by forestry, only 84 may actually be so.  He pronounced legislation that he recently introduced, H.R. 3625, that will exclude timber, agriculture, and livestock from TMDL regulations.  Specifically, the bill will amend the Federal Water Pollution Control Act to exclude discharges of stormwater runoff from silvicultural operations from the definition of point source and will prohibit the EPA from requiring a national pollutant discharge elimination system permit for discharges composed entirely of agricultural stormwater discharges or for discharges from silviculture operations.  He also cited other legislation, H.R. 4922, that he introduced with Reps. Sherwood Boehlert (R-NY) and Charles Stenholm (D-TX), that would ensure that EPA's TMDL changes be subject to congressional and public review.

Panel 2
Mr. J. Charles Fox, Assistant Adminstrator for Water, U.S. Environmental Protection Agency
Mr. Jim Lyons, Under Secretary, Natural Resources and Environment, U.S. Department of Agriculture

Charles Fox specified three points in refutation of opposing arguments in regard to the EPA's most recent TMDL rule revisions: 1) the TMDL program allows states full control to make decisions on how to best clean water; 2) the TMDL program is not new--all 50 states already have EPA approved TMDL programs in place; and 3) the rulemaking was not rushed, but was a careful four-year process that took into account all interests, even extending the public comment period to 150 days from the standard 30 to 60 days.  He stated that he opposed H.R. 4922 as invoking an unnecessary delay in implementation of the program because it would require the EPA and others to spend the next year reviewing and reanalyzing virtually all aspects of the new TMDL regulations.  He continued that "the core TMDL program has been in place for almost 20 years and we just spent almost 4 years developing the final TMDL rule, doing extensive analysis, and listening to and addressing numerous comments.  The challenge we now face is to get down to the job of actually getting polluted waters cleaned up, not debating the basic concepts all over again."

Jim Lyons stated that last February, an interagency working group was formed to resolve any policy differences between the USDA and EPA and to ensure that the USDA and its constituency had a voice in making the TMDL program better.  As a result, the EPA has clarified its position as to when discharges from silvicultural activities would be required to have a Clean Water Act permit and how such permits should be structured.  The TMDL rule now does not include any new permitting requirements for forestry, concentrated animal feeding operations, and aquaculture operations.  He expressed, however, that additional funding will be necessary in order to help farmers, ranchers, and foresters address TMDLs and reach the common goal of fishable and swimmable waters.  The USDA, in their initial fiscal year 2001 budget request, has sought additional funding from $200 million to $325 million for the Environmental Quality Incentives Program as well as an increase in acreage in the Conservation Reserve Program and the Wetlands Reserve Program to 40-million and 250,000 acres respectively.

Full written testimony is available at the Committee website.

-N.M.


Sources:  hearing testimony, Thomas, EENews

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by 2000 AGI/AIPG Geoscience and Public Policy Intern Nathan Morris

Posted August 4, 2000


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